YEUNG WING KEUNG v. SWIRE COCA-COLA HK LTD

HCPI 150/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 150 OF 2005

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J U D G M E N T

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Introduction

1.  On the 24th of April 2001 the Plaintiff had an accident whilst working which caused him to fall on his buttocks resulting in a lower back sprain.  He was lifting a trolley loaded with crates of soft drink up two low steps when he fell.  Whether the fall was caused because his foot slipped, or because he lost his balance, or because he misplaced his foot is a matter of argument.  The Plaintiff did not work again for almost 4 years because of, what he says, are the lasting results of his injury.

Plaintiff's claim

2.  The Plaintiff claims a substantial sum for what he contends is the negligence of his employer, the Defendant, alleging:

(1)	failure to provide any or adequate safety devices for carrying out  delivery work;
(2)	failure to warn the Plaintiff adequately about the danger of delivering soft drinks without safety shoes and/or that the floor tiles were slippery;
(3)	failure to give proper or sufficient instructions or training as to the proper way to carry or lift heavy objects;
(4)	failure to exercise proper supervision and/or managerial control over the delivery work;
(5)	failure to devise, provide or maintain an appropriate system of work or to take precautions to ensure the Plaintiff was reasonably safe while carrying out delivery work;
(6)	failure to ensure that the place in which the Plaintiff carried out delivery work was reasonably safe;
(7)	failure to give proper or sufficient instructions and/or advice as to the proper or reasonably safe route of delivering soft drinks to the vending machine.

Defence

3.  The Defendant contends that the Plaintiff caused his own injuries by:

(1)	failing to follow safety instructions about handling heavy items;
(2)	failing to adopt the correct lifting posture;
(3)	failing to seek assistance from his co-workers;
(4)	failing to use the ramp on either side of the main entrance;
(5)	going about his work hurriedly and without due care;
(6)	failing to have sufficient regard for his own safety.

Background

4.  The Plaintiff, then aged 37, was employed by the Defendant as a delivery worker from June 2000.  He was one of a team of three, who boarded a delivery truck and transported crates of soft drinks from the truck to re-stock vending machines.  The working day started at 8 a.m. and finished towards 7 p.m.  The truck made between 28 and 30 deliveries per day, the delivery time for each client visit varied, depending on the distance between delivery sites and how many cans needed replacing.

5.  The evidence was that the team leader/driver would check the vending machine first and advise his assistants how many cans were needed.  The assistants would bring the crates by hand or by a trolley.  The machine would be given a rudimentary cleaning and the new stock would be inserted.

6.  Each crate comprised 24 cans and weighed around 20 pounds.  It was not uncommon for the trolley to carry more than 10 crates.  Nor was it unusual for the laden trolley to be lifted up stairs and staff were taught how to do so.

7.  On the day of the accident the Plaintiff was on board the truck with his team leader Mr Lau (DW1) and another assistant, Mr Chiu (DW2).  The team had made three to four deliveries before arriving at the Yuen Long Industrial Estate - the delivery was to a vending machine on the ground floor of the building.  The Plaintiff was wearing a pair of sports shoes, as was Mr Chiu.  Mr Lau inspected the machine and Mr Chiu took 2 crates of drinks to the machine by hand.

8.  According to the Plaintiff he loaded the trolley with 10 crates and pushed it to the steps leading to the ground floor.  There were 2 steps to climb flanked by two low ramps, which made it unnecessary to use the steps.  The steps, as seen in the photographs (produced with DW1's witness statement – B86) are not high, each having a riser of 6 inches approximately.  The Plaintiff chose to negotiate the steps using the lifting technique he had been taught rather than use either ramp.  While doing so he fell.

9.  The Plaintiff claimed in court that his foot slipped because he was wearing sports shoes with worn soles which had lost their gripping ridges.  He complained too that a tight schedule forced him to work hurriedly, which was why he had chosen to use the steps rather than the ramps.  He said the trolley was very heavy which made negotiating steps more difficult.  He fell, landing on his buttocks and the trolley fell back on top of him.

10.  Neither Mr Lau nor Mr Chiu witnessed the fall.  Mr Chiu heard the Plaintiff cry out and saw him sitting on the ground with 5 or six crates on the trolley and the contents of about 2 crates scattered on the ground.  It was the evidence of Mr Lau and Mr Chiu that the steps were clean, dry and of roughened surface; in other words not slippery.  The weather was fine.  The Plaintiff said he did not notice whether the steps were slippery.

11.  The Plaintiff alleged that he was being hurried by his leader because of the tight delivery schedule.  Mr Chiu, who had joined the team only the day before the incident but had had 2 years delivery experience with the Defendant, said he was not aware of any particular need to hurry and Mr Lau denied telling the Plaintiff to hurry.  The defence witnesses made it clear that although despatch was needed, there was no unusual haste required that day.  The list of 28 to 30 deliveries was not unusual.

Alleged negligence

12.  The Plaintiff's allegations of negligence fall into three categories.  The first is the issue of safety shoes.  The second is the training and instruction given to the Plaintiff before and while doing his job.  The third is the precautions required to ensure the Plaintiff was safe while carrying out his work.

Safety shoes

13.  The Plaintiff says that he should have been provided with safety shoes for use in his delivery work.  The Rules for Assistants issued by the Defendant (B130) stated that helpers while working should wear safety shoes.  He had applied for such shoes but was issued with a pair one size smaller than he needed, his own size (42) being unavailable.  He returned the shoes but was not given a replacement pair thereafter.

14.  No examples of safety shoes were produced in court, but there seemed to be agreement that such shoes provided protection to the toes by a metal plate inserted in the upper.  Mr Chiu, who wore such shoes post- accident, confirmed the presence of a metal plate, but was unsure whether the soles were non-slip.  It is likely that they were, as otherwise there would be no point in a worker wearing them.

15.  Mr Chiu found the safety shoes were uncomfortable to wear, presumably because of the metal plate; he preferred to wear his own shoes.  Apart from protecting the upper part of the foot, safety shoes would not offer any greater protection against falls than that afforded an ordinary sports shoe; the Plaintiff at the time he fell was wearing ordinary sport shoes with a rubber sole.

16.  The need for safety shoes was a major issue in the Statement of Claim, but no mention was ever made that the Plaintiff was wearing sports shoes with worn soles.  Nor was it claimed, until he came to court, that the fall had been caused by his inadequate footwear.

17.  The Defendant did not supply the Plaintiff with safety shoes in his correct size before the accident, in contravention of their own Guidelines to Assistants and contrary to common sense.  It is not however sufficient for the Defendant to be held negligent for that reason alone.  The Plaintiff must be able to show that it was the lack of safety shoes that was responsible for the accident.  No evidence established that point.

18.  The Plaintiff was wearing sports shoes with rubber soles.  He was not required to do any more than carry out his work at normal speed to the site and he had negotiated, successfully, the same steps with a laden trolley on previous occasions.  He was using the techniques taught him on his joining the company.  Mr Lau said that he had had occasion to correct the Plaintiff's lifting technique in the 2 months that he had been on his team.

19.  The Plaintiff did not notice whether the surface of the steps was slippery, but Mr Lau and Mr Chiu gave evidence that the steps were dry with a rough surface.  That being so it is difficult to see how the Plaintiff could have slipped if he was wearing sports shoes.  It is much more likely that he missed his footing, or lost his balance, when he was climbing the steps.  Even if he had worn safety shoes there is no evidence that such shoes would have, or could have, prevented his fall.  The Plaintiff alleged he had not been warned that the surface was slippery, but that is hardly surprising given the evidence of DW1 and DW2 that it was not.

20.  Two gently sloping ramps flanked the stairs and the Plaintiff could have used either one to reach the ground floor.  The ramps were visible and had been pointed out to the Plaintiff on earlier occasions by Mr Lau, but he had not ordered the Plaintiff use the ramps on any occasion including the day of the accident.  The Plaintiff chose to use the steps using the technique he had been taught.  He claimed he was being pushed to hurry and finish the job and he believed it was quicker to use the steps.

21.  The photographs show that if the truck was parked close to the steps the ramps would be accessible as easily and quickly as the steps.  Common sense and prudence would dictate that someone wheeling a heavy trolley would find it easier to use the ramp, rather than the steps, despite having the ability to negotiate the steps.

Evidence DW1

22.  Mr Lau said the Plaintiff was aware of the ramps because he had been to the site approximately 8 times in the month they had been working in the district.  The ramp would be used if the trolley was very heavy, but that was the Plaintiff's choice once he had loaded the trolley.  If more than 10 crates were loaded a supplementary platform at the trolley base could be extended.  Mr Lau and Mr Chiu did not consider 10 crates out of the ordinary.  Although the load was heavy it was not overly so, nor was it so heavy that the Plaintiff needed to seek help from Mr Chiu or Mr Lau.

23.  According to Mr Lau normally no one would pull a load of 10 crates, but would push the trolley, as pulling a laden trolley was difficult.  He confirmed that the Plaintiff had not had problems negotiating the steps on previous occasions.  He believed that the load carried by the Plaintiff was around 8 crates.  As he had told his team the machine was 70% empty, it was unlikely that they would deliver more than 200 cans to the machine.

24.  The Plaintiff had told him on that day that his fall was caused by a misplaced foot.  In his witness statement he said the Plaintiff told him he had lost his balance, and in cross-examination that DW1 claimed he had slipped.  Mr Lau confirmed in court that the Plaintiff told him he had misplaced his foot.  He was unaware of the significance of the differing phraseology.

25.  Mr Lau confirmed that training of delivery workers took about two weeks and each newcomer was given training on a truck.  He taught the Plaintiff how to negotiate the stairs with the trolley and the correct lifting posture when he joined the vehicle.  He had no idea when the Plaintiff joined the company, but he had needed to rectify the Plaintiff's lifting technique.

26.  He agreed that the delivery schedule was tight but there was some leeway because not all the machines needed refilling entirely; the longest driving time between machines was 15 minutes and some sites were next door to each other.  He confirmed he was not in a hurry nor had he instructed the Plaintiff to hurry that day.

Evidence DW2

27.  Mr Chiu had been working for the Defendant for two years prior to the accident, but had only just been assigned to this particular route; it was his first visit to the Yuen Long Industrial Estate.  He believed the Plaintiff was not working hurriedly - this was based on his experience as a substitute worker on other trucks.  He knew the schedule contained 20 to 30 orders but said that every truck was the same.  He denied that the team had to work at speed.

28.  He had been taught the use of the trolley and the correct lifting posture.  The Defendant had given warnings and safety instructions about carrying large quantities of goods.  If he used the wrong posture Mr Lau would correct him, but he had not had to teach him the correct posture on his joining the truck, because he had had two years experience already.

29.  He had never worn safety shoes prior to the accident and had learned about the company guidelines only after it.  He now had safety shoes but despite their having thick soles they did not have a non-slip function.  If he walked on wet tiled floors they still felt slippery.

30.  He did not know how many crates the Plaintiff had loaded onto the trolley, but after the accident he saw 4 to 5 crates on the trolley and 2 to 3 crates on the floor.  He did not hear the Plaintiff say why the accident happened, nor did he witness the accident.

Issues

31.  A number of questions require to be answered:

(1)	was the Defendant negligent in not supplying safety shoes?
(2)	would safety shoes have prevented the accident?
(3)	was the Plaintiff given proper training?
(4)	was the Plaintiff properly supervised whilst working?
(5)	was there a safe system of work in place?
(6)	was the Plaintiff working under pressure?
(7)	was there any particular risk at that site?
(8)	was the load abnormally heavy?
(9)	were the steps slippery or dangerous?

Safety Shoes

32.  The Defendant provided safety shoes and the Rules required workers to wear them.  Posters and promotional material in the workplace also carried the message.

33.  Mr Chiu had been working without such shoes for 2 years before the accident.  The Plaintiff after his unsuccessful attempt to obtain a pair of safety shoes in his correct size reverted to wearing his own sports shoes.  There was no evidence that any sanctions were in force to punish workers who did not wear safety shoes.

34.  As Mr Chiu had worn his own shoes for 2 years, it is probable that no stringent checks were made to ensure staff wore safety shoes, but no witness other than the Plaintiff gave evidence on this aspect.  The Plaintiff made no further attempt to obtain shoes to fit him.

35.  The Defendant was under a duty to ensure the Plaintiff had safety shoes and to see that such shoes were worn for work, but it was not incumbent on the Defendant to force the Plaintiff to do so – a workman must take some responsibility for his own safety in the course of his work once a viable system is in place.

36.  Assuming, for the purposes of argument, that the Defendant was liable to ensure the Plaintiff was supplied with and made to wear safety shoes, the question then is whether wearing such shoes would have prevented this accident.

Would wearing safety shoes have prevented the accident?

37.  The photographs showed that the 2 stairs were low (6 in) wide, with a roughened surface and a central metal handrail.  The weather was fine; they were not slippery or wet.  The Plaintiff was wearing sports shoes with a rubber sole which, even with worn ridges as the Plaintiff claimed, would have been suitable for mounting stairs.  It is noteworthy that the alleged defects of the Plaintiff's shoes only emerged when he gave evidence.  I have no doubt that this contention, if genuine, would have been in the Plaintiff's witness statement at the latest, even if not in the Statement of Claim.

38.  If the trolley was overloaded that was the fault of the Plaintiff – but given his previous experience and as he did not seek assistance from Mr Chiu or Mr Lau it appears that he considered the load manageable.  The ramps are very obvious and I have no doubt that any delivery worker with an overloaded trolley would have been quick to use them.

39.  I find that the Plaintiff did not slip but missed his footing or misplaced his foot, which caused him to fall.  I can see no way in which he would have been saved from such a fall by wearing safety shoes.

Was the Plaintiff given proper training?

Was the Plaintiff properly supervised when working?

40.  The basic training period for delivery workers was approximately a fortnight during which lifting techniques and carrying and lifting postures were taught.  The trainee would be attached for a training period on a truck, after which time the trainee would be attached to a team.

41.  As each truck leader, (who was also the driver) had also had experience as a trainee and a team member, training was continued on the truck by the leader correcting techniques and posture as necessary.  Safety posters and promotions were also used by the Defendant to reinforce the training.

42.  The Plaintiff gave an account of the training he had had from a Mr Wong on his joining the Defendant and agreed it included lifting and carrying techniques.  Mr Lau gave evidence of his correcting him if he used incorrect techniques.

43.  I am of the view that the training was adequate given the parameters of the job of deliveryman.  It was important to protect the workers' backs and knees by knowledge and practice of correct lifting and carrying techniques; the aim of the training.

44.  It was necessary also to protect workers against strain injuries from carrying loads which were too heavy.  A manageable load would depend on the size, strength and skill of an individual worker, so rigid rules were pointless.  It was a matter for the commonsense and experience of the worker.  If he needed assistance he could call on the other team members – again that was part of the training and supervision.

45.  Accordingly I am satisfied that the Plaintiff was given proper training and ongoing supervision.

46.  The remaining questions resolve into a single consideration; i.e. whether the Defendant put in place a safe system of work.  Part of such a system is based on proper training, for reasons given above.  I find that the training was adequate given the nature of the work and that initial training was reinforced by continuing supervision by the group leader in the daily course of the work and by the use of promotional material in the workplace.

47.  Each truck had a team of 3, thus ensuring physical assistance was available if required.  Working hours were approx 11-12 hours broken by a lunch hour and enforced 'rests' during the drive from place to place.  The job requirements were not complex and no evidence was led to establish in what way the system was inadequate or placed workers at risk.  I find that the Defendant had put in place a safe system of work overall and that no alleged inadequacies of the work system contributed to the Plaintiff's accident.

Conclusion

48.  I find that the Defendant is not liable in negligence for the Plaintiff accident or his injuries.  I do not accept his evidence about inadequate footwear, which I find was a last minute fabrication to bolster his claim.  Nor do I accept that he slipped, rather I find that he missed his footing as he negotiated the steps.  If, as he claimed the trolley was too heavy he could have

(a)	reduced the number of crates;
(b)	sought assistance from Chiu or Lau;
(c)	used the ramp.

49.  At a certain point responsibility for work safety must devolve from the employer to the employee who, although he must be protected, is paid to use his skills and his commonsense in carrying out the task he is set.  Here the Plaintiff must bear responsibility for his own injury.

50.  Accordingly I dismiss the Plaintiff's claim.

51.  Costs of the action are awarded to the Defendant, to be taxed if not agreed.

52.  Liberty to apply is granted.