SUEN YUK CHUN v. JET AND SMART HOLDINGS LTD

DCEC 1588/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EMPLOYEES COMPENSATION CASE NO. 1588 OF 2005

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J U D G M E N T

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Background

1.  Madam Suen was employed as a waitress at a staff canteen operated by the Respondent ("Employer"), at the Air Freight Terminal in Chek Lap Kok ("Canteen").  She claimed that she sprained her back as a result of her cleaning the walls of the Canteen in the course of carrying out her work duties.  The Employer denies that Madam Suen was ever instructed to clean the walls of the canteen, or that she was in fact cleaning the walls. The Employer further claims that if Madam Wong was cleaning the walls in the manner she described, it was not the appropriate manner to clean the walls, and that in any event, Madam Suen could not have sprained or injured her back whilst cleaning the walls in the Canteen.

2.   These proceedings were commenced by Madam Suen to seek employees' compensation.  The parties have agreed that if Madam Suen had indeed injured her back as a result of her cleaning the walls of the Canteen, as claimed,  the damages to which Madam Suen is entitled under sections 9, 10 and 10A of the Employees' Compensation Ordinance are $19,664.78. 

3.  The issues for my determination at trial are:

(1)  Was Madam Suen's injury sustained in the manner alleged by her ?

(2)  Was Madam Suen's injury caused by an accident arising out of and in the course of her employment ?

Was Madam Suen's injury sustained in the manner alleged by her ?

4.  According to Madam Suen, she had worked as a waitress in the Canteen since June 2004.  Her hours of work were normally from 7 a.m. to 4 p.m., which was the early shift, and she worked 6 days a week.  Her work duties as waitress included taking orders from customers, delivering dishes to customers, clearing up used dishes and utensils from the tables, and sorting clean utensils.

5.  Madam Suen claims that on a day during the Easter holidays at the end of March 2005, she had been assigned to work a later shift from 12 noon to 9 p.m..  After lunch had been served, Madam Suen was instructed by her superior, Miss Ho, to clean the walls in the Canteen.  Madam Suen said she was surprised to receive these instructions, as it was not a task which she had been instructed to do before, nor had she seen any of her colleagues doing such a task on a large scale basis.  Madam Suen explained that if a part of the wall was dirty, for example as a result of food or beverage spillage, then that part of the wall would be cleaned, but Madam Suen had not seen any colleague of hers cleaning all the wall surfaces in the Canteen on his/her own at one time. 

6.  Madam Suen claims that since Miss Ho had instructed her to perform the task, she did as instructed, and never thought of challenging Miss Ho as to whether it was her job to do the task.  She explained that as other colleagues all had their own work to do at the relevant time, she did not ask anyone to help her with the task assigned to her by Ms. Ho. 

7.  According to Madam Suen, the walls in the Canteen were about 10 feet high.  There was no step ladder in the Canteen, and to reach the top part of the walls, Madam Suen claimed that she had to move the round tables and chairs in the Canteen and stand on a chair or a table in order to reach the top parts of the walls for cleaning.  Madam Suen claimed that she worked from around 2 p.m. to 6 p.m..  As she had to stand on tip-toe to clean the higher parts of the wall, she felt weakness in her legs and in her back during this interim.  When the cleaning was finished, she felt pain in her back as she stood up straight, which pain intensified until by around 9 p.m. that evening, both her legs felt numb and weak.  Madam Suen explained that at first, she felt this was just a normal sign of over-exertion and she simply put ointment on the affected parts of her body, and returned to work the next day.  She was walking with a limp as she was in pain.  Madam Suen recalled that some of her colleagues enquired about her condition when they saw her, and she explained to them that she might have hurt her back as a result of cleaning the walls.  As she did not know that she was entitled to claim compensation for work related injury, she continued simply to apply ointment to the affected parts of her body, and did not seek medical assistance.  She said she could not afford to incur unnecessary  medical expenses, and was also hesitant to take sick leave in order to avoid deduction in her pay.  It was not until 9 April 2005 that Madam Suen finally went to see Dr. Chui, after she had been assigned by Miss Ho on 7 April 2005 to clean the chairs in the Canteen, which made the pain in her back intensify and extend to her left leg.

8.  The Employer disputed Madam Suen's version of events.  Although it is not disputed by the witnesses called on behalf of the Employer that the  duties of waitresses at the Canteen included cleaning, they were unanimous that Madam Suen never took part in any cleaning work. 

9.  According to the evidence of Miss Ho Fung Ling, who was the supervisor of the dining area of the Canteen, she did not instruct Madam Suen on 23 March 2004 to clean the walls of the Canteen on her own.  She claimed she would never instruct Madam Suen to clean all the walls of the Canteen on her own, as Madam Suen alleges.  Miss Ho had no recollection of seeing Madam Suen standing on a table and cleaning the wall of the canteen at any time.   According to Miss Ho, the walls of the Canteen would be cleaned about two times a week, but she never had to give specific instructions to her staff at the Canteen to do cleaning or any other specific work, as the staff would be able to do the work on their own and would cooperate and allocate the duties amongst themselves.  Miss Ho also claimed that she would not give specific instructions to any particular member of staff to do any specific work, as she had no need to do so and it made no difference to her which member of staff did what type of work.  On these bases, she denied that she had instructed Madam Suen to clean the walls on her own and to take a bucket, towel, gloves and detergent to do this, as Madam Suen claimed.

10.    Further, Miss Ho claimed that cleaning the walls, fans and glass windows of the Canteen were not work to be carried out by one member of staff alone, but by 3 to 5 employees together, and such work did not have to be completed in a day.  According to Miss Ho, the Employer provided scrapers, towels and detergent for use in cleaning the walls.  She claimed that the staff had been instructed by her not to stand on chairs or tables, but to use a scraper or a wooden pole with a wet towel tied at the end to clean the higher parts of the walls.

11.    According to the evidence of Miss Wong Wai King, another waitress employed at the Canteen, she was normally the member of staff who would clean the walls at the Canteen.  According to Miss Wong, she was the tallest, and she would generally use a scraper or a wooden pole wrapped with a wet towel to clean the higher parts of the wall.  According to Miss Wong's statement signed on 20 August 2007 and her testimony in court, Madam Suen never took part in any cleaning work.  Miss Wong's evidence is that general cleaning of the Canteen normally took place between 3 p.m. to 5 p.m., when about 4 members of the staff including herself would sweep and mop the floor, clear the rubbish, and sometimes clean the walls, fans and glass windows.  According to Miss Wong, such cleaning would not be undertaken by one employee alone.  Cleaning of the walls would take place once every few days, sometimes on the specific instructions of Miss Ho, and sometimes by the workers on their own accord.  Madam Suen's normal shift is from 7 a.m. to 4 p.m., and Miss Wong suggested that that was the reason why Madam Suen would generally not participate in the cleaning work which normally commenced just an hour before the time of Madam Wong’s scheduled departure. 

12.  Miss Chan, a cashier employed at the Canteen, made a statement to support the Employer's case but as she was not called as a witness, I place no reliance on her statement.

13.  It is the Employer's case that Madam Suen's account of how she sustained injury is unreliable and incredible.  It is claimed that no one witnessed or recalled seeing Madam Suen standing on a table or a chair to clean the walls of the canteen on her own, which would have been an unusual and eye-catching occurrence.  The Employer points out that Madam Suen had, in different accounts, given different dates for the alleged accident : 26 March 2005 or a date between 25 and 28 March 2005 (in her Application of 14 November 2006); the end of March 2005 during the Easter holidays (in her witness statement of 7 August 2007); 23 March 2005 (in her witness statement of 24 December 2007); and (in Madam Suen's letter to the Labour Department ) 7 and 8 April 2005.  The Employer further relies on the the fact that Madam Suen only made a claim of the alleged accident in July 2005 when it is her assertion that the accident was in March 2005 and she had seen a doctor on 9 April 2005.

14.  I have examined and considered in Madam Suen's overall evidence, and I find her to be an honest witness.  She is clearly a simple woman with little education and experience and who was ignorant of her legal rights.  She was not aware of the fact that she was entitled to compensation in the event of sustaining injury in the course of her employment.  According to her evidence, she was reluctant to incur unnecessary medical expenses and also to take unnecessary sick leave to avoid deduction in wages.  Accordingly, she put up with her pain immediately after the accident and resumed work despite having to walk with a limp, and did not seek medical help until her back pain was aggravated when she was further assigned to clean the chairs in the Canteen on 7 or 8 April 2005.  She was given sick leave as a result of her visit to the doctor on 9 April 2005, when she was diagnosed as suffering from low back pain.  It was only when she received advice from her insurance agent in relation to her income protection insurance policy that she learnt that she could claim compensation from the Employer as a result of the injuries she sustained in the course of her employment.

15.  Hence, I do not find it incredible that despite having hurt her back in late March 2005 as she claims, Madam Suen did not seek medical attention until 9 April 2005 and did not make any claim until July 2005.

16.  As for the different dates given for the accident, I accept Madam Suen's evidence that by July 2005, she could not accurately recall the precise date on which the accident took place, only that it was a day during the Easter holidays when her son did not have to attend school.  She mentioned the date of 7/8 April 2005 because she only went to see the doctor on 9 April 2005 after her pain had become more severe as a result of having to clean the chairs at the Canteen on 7 or 8 April 2005, and she was advised by the Labour Department to use the latest date of the injury.  I would not take these discrepancies in dates against Madam Suen when I am satisfied with all the other aspects of the evidence.

17.  Miss Ho and Miss Wong who were called by the Employer maintained that they had not heard of Madam Suen sustaining injury in the course of her work at the Canteen.  Bearing in mind the fact that Madam Suen never made a claim in relation to her injury prior to her leaving effective employment in April 2005, and further bearing in mind the fact that on Madam Suen's account of her injury and the work involved, there was no fall or other remarkable event leading to her injury, it is not unusual that Miss Ho, Miss Wong and Miss Tsao (who worked in the office of the Employer and not at the Canteen) would have no recollection of Madam Suen's injury back in 2005.  The focus and evidence of Miss Ho and Miss Tsao were diverted instead to how and why Madam Suen had asked for evidence from the Employer of her taking sick leave for the purpose of claiming under her insurance (again a misunderstanding due to Madam Suen's ignorance of the nature of the evidence required for her insurance claim).  They did, however, have recollection of Madam Suen taking sick leave.  Although Miss Wong and Miss Ho claimed that Madam Suen had said that she was taking sick leave because of pain in her leg, this is not entirely inconsistent with Madam Suen's case that her back pain extended to her left leg causing numbness there, and in any event, the sick leave certificates Madam Suen faxed to the Employer clearly showed that she was suffering from low back pain.

18.  The only witness called in support of Madam Suen's claim was Miss Ho Yi Man, the supervisor of the beverage section in the Canteen.  According to the Statement of Miss Ho Yi Man made on 7 August 2007, she recalled that one day at the end of March 2005, she saw Madam Suen at the Canteen walking with a limp.  Miss Ho Yi Man asked after Madam Suen, and Madam Suen informed Miss Ho Yi Man that she had hurt her back the day before whilst cleaning the walls in the Canteen.

19.  The evidence which Miss Ho Yi Man gave in court was clear and unwavering.  She explained that on the day in question when she saw Madam Suen walking with a limp, Madam Suen had just arrived at the Canteen for work in her usual early shift, whereas Miss Ho Yi Man was on her night shift from 10:30 p.m. the previous day to 9 a.m.   Miss Ho Yi Man also said that some time after that occasion when she had not seen Madam Suen in the Canteen, she asked Miss Wong if Madam Suen was off work, and Miss Wong told Miss Ho Yi Man that Madam Suen had injured her back.  Miss Ho Yi Man asked Miss Wong if Madam Suen had seen a doctor, and Miss Wong answered that she had.  Miss Ho Yi Man categorically denied Counsel's suggestion that she could be wrong in her recollection of this encounter and exchange with Miss Wong.

20.  According to Miss Ho Yi Man, she had seen the workers at the Canteen doing cleaning work, and had knowledge as to how they executed such work.  This was normally done from 3 p.m. to 5 p.m., when there were relatively fewer customers in the Canteen.  She had seen Madam Suen doing cleaning work, although she could not recall when.  According to her evidence, it would normally be either Miss Ho or Mr. To, the other supervisor, who would give instructions to the staff to do cleaning work.  She was not certain as to whether she had seen Madam Suen standing on a table to clean the walls, but she did have recollection of having seen someone standing on a chair to clean the higher parts of the wall.  She had never seen a ladder being used (the parties being in agreement that there was no ladder at the Canteen).  Even if a wooden pole was used, a worker would still have to stand on a higher level to reach the high parts of the wall.  She did not agree that Miss Wong would generally be the one cleaning the walls.  According to the evidence of Miss Ho Yi Man, Miss Wong would more often be engaged in working at the bar, as she was taller and could reach the food or drinks and she was also more experienced.  Miss Ho Yi Man agreed that more often, 2 or 3 workers would be cleaning the walls in batches, but she had witnessed one worker doing the cleaning of the walls alone because of the shortage of staff.

21.  I regard Miss Ho Yi Man's evidence to be unassailable.  She gave evidence in a fair, frank and unwavering manner.  I see no reason for her to lie in her evidence.

22.  Although Miss Wong claimed in her Statement that Madam Suen had never mentioned to her that she had injured her back in the course of her work, and further, that she had never witnessed Madam Suen taking part in any cleaning work, in the course of her cross-examination, Miss Wong admitted that on a day during the Easter holidays in 2005, as she was about to go off work at 4 p.m., she saw Madam Suen cleaning the glass window panel next to the wall of the Canteen.  She was not standing on the table but on the floor.  According to Miss Wong, there were about 3 other workers who were doing other cleaning work at the same time, but she could not identify what they were doing, save that she mentioned that someone was cleaning the table and someone else besides Madam Suen was cleaning the glass panel.  Miss Wong admitted that it left a deep impression on her as Madam Suen rarely took part in the cleaning work of the Canteen, though why she had failed to mention it in her Statement filed for the Employer was not explained.  On being questioned further, Miss Wong's evidence is that Madam Suen had been working at this since some time after 3 p.m., and that she was cleaning the glass panel when Miss Wong left at 4 p.m. 

23.  In relation to the conflicting evidence before the court, I prefer that of Madam Suen and Miss Ho Yi Man to that of Miss Wong and Miss Ho Fung Ying.  Miss Ho Fung Ying's evidence that she would never instruct any member of her staff to do any specific work is incredible.  As supervisor, one would expect that it is her duty to give such instructions.  Even if she was not lying, I find that it is not improbable that she would have no recollection of having given what I would regard to be mundane instructions to a member of the staff at the material time to do such routine work as cleaning the walls, which all the Employer's witnesses accept to be regular and routine work at the Canteen, although it may not have been so to Madam Suen - as all the Employer's witnesses agree that she rarely if ever participated in such cleaning work. 

24.  I  therefore accept Madam Suen's evidence that she was instructed by Miss Ho to clean the walls in the Canteen on a day during the Easter holidays in 2005, which was at the end of March, and that as a result of her doing this from 2 p.m. to 6 p.m. as she claimed, and as a result of her having to stretch her arms to clean the top parts of the wall and squatting and standing up in the process, she sprained her back.  This caused her to limp the next day to avoid exerting pressure on and increasing the pain in her back, which was witnessed by Miss Ho Yi Man.  The injury to her back was aggravated when she was instructed by Miss Ho to clean the chairs on 7 or 8 April 2005.  Her evidence is on the whole corroborated by that of Miss Ho Yi Man and by what Miss Wong said in the course of cross-examination.  The glass panel which Miss Wong said Madam Suen was cleaning at around 4 p.m. was, from the photographs produced at trial, just next to the walls of the Canteen. 

25.  The medical evidence supports Madam Suen's case.  The medical report of Dr. Chui and his diagnosis of sprained neck injury is consistent with the circumstances of the accident outlined by Madam Suen.  Dr. Au also commented in his report that it is likely that Madam Suen had sustained injury at the end of March 2005 and 7 April 2005, which caused aggravation of degenerative changes in Madam Suen's lumbar spine and rendered her lower back to become painful.  Dr. Chiang's report also stated that if it is true that Madam Suen's job involved manual activities, her back symptoms could be accepted as arising from a work.  It is clear from the evidence that Madam Suen was indeed involved in manual activities in her work at the end of March 2005.

26.  I am satisfied that Madam Suen sustained injury in the manner as she alleged.

Was Madam Suen's injury caused by an accident arising out of and in the course of her employment?

27.  Counsel for Madam Suen referred to Fenton v. J. Thorley & Co. Ltd [1903] AC 443, where the Court defined an accident as "any unexpected personal injury" and "any untoward event which is not expected or designed".  An accident includes the trivial or unsensational, as well as things which cause injury in a stealthy manner (paragraph 105 of Butterworth’s Hong Kong Personal Injury Service, Part IV).  In the case of Lam Sik v. Sen International Ventures Corp (HK) Ltd. [1994] 3 HKC, the Court quoted with approval the following passage in the decision in Kavanagh v. Commonwealth (1960) 103 CLR 547 :

 " … anything at all that happens to a man while he is at work happens in the course of his employment and if it happens unexpectedly, it is an accident in the course of the employment."

28.    Although the manner in which Madam Suen had sustained injury did not involve a dramatic occurrence such as a collapse or fall, I accept that it was an unexpected event or occurrence producing injury, which can be described as an accident.  The lack of instantaneous complaint obviously cannot make it less an accident, and despite the Employer's suggestion that there may be other possible causes for Madam Suen's sprained back (such as doing household chores), so long as the evidence supports a sufficient causal connection between the incident and the injury complained of on a balance of probabilities (Tang Siu Kong v. Bonaza Fur Factory Ltd. (1991) HKDCLR 64) as I so find, Madam Suen's back injury is more likely than not a result of her cleaning the walls of the Canteen in late March 2005, aggravated by her cleaning the chairs in April 2005.

29.  I am satisfied, on a balance of probabilities, that Madam Suen's injury was caused by an accident arising out of and in the course of her employment.

Award

30.  The Employer is accordingly liable for compensation, and judgment should be entered in favor of Madam Suen for the agreed damages in the sum of $19,664.78, which includes interest.    I will make a costs order nisi that the costs of the action are to be paid by the Employer, with certificate for counsel, and for Madam Suen's own costs to be taxed in accordance with the legal aid regulations.