YU WAI LEUNG v. MANDARIN ORIENTAL, HONG KONG LTD

HCPI 1194/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1194 OF 2003

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J U D G M E N T

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Introduction

1.  This is an action for damages for personal injury which is brought by Mr Yu Wai Leung who had been employed for 12 years, from April 1990 until December 2002, in the kitchens of the Man Wah Chinese Restaurant of the Mandarin Oriental Hotel.  His employment, to give it its precise title, was as Number 4 chopper.  As that title implies his duties involved chopping up, amongst other things, legs of Yunnan hams which would then be used to make up stock (soup) from which the kitchen would prepare many of its dishes including, but not limited to, shark’s fin soup.  He complains that as a result of being required to carry out his “chopping” duties, he sustained what is commonly referred to as tennis elbow, its medical term being lateral epicondylitis.  He says that despite a series of treatments involving physiotherapy, periods off work and injections he has not recovered from what is now a chronic condition, as a result of which he became so disabled that he was unable to perform his duties nor indeed less onerous work that he had been put on by the hotel, such as sandwich making.  In the event, he alleges that he was left with no option but to take early retirement after which he has been unable to enter any other employment notwithstanding the fact that he is still only aged 55.  He was 53 when he took early retirement.  He therefore claims damages for pain and suffering as well as for loss of earnings including the loss of earnings that he would have earned had he remained in employment until his normal retirement age of 60.

2.  It is not disputed by the Defendant that the Plaintiff has tennis elbow.  The outcome of this case, that the Plaintiff would wish, depends on him proving that this condition is related to his employment with the Defendant and that it was caused by their breach of duty owed to him.  This will require a close examination of the work that he was required to do with particular reference to his chopping duties and the intensity of those duties, as well as the frequency that he was called upon to perform this type of work.

3.  The defence denies that the condition was caused by the work that the Plaintiff was required to do.  If it fails on this issue, it further contends that it was not in breach of any duty that is owed to the Plaintiff that was causative of this condition.  There is also a plea of contributory negligence levelled at the Plaintiff but, quite rightly in my view, this is now not pursued.

The Plaintiff’s duties and work routine

4.  The Plaintiff was born in Mainland China in September 1949.  He came to live here in 1989 having been educated up to the third form at secondary school there.  Before arriving in Hong Kong, he had worked in the retail business.  He began working for the Plaintiff in April 1990 having worked in other restaurant kitchens before that.  The Man Wah kitchen at the Mandarin then employed four ‘choppers’ of which he, as Number 4, was the most junior.  He says that as Number 4, he was expected to do the most physically demanding of the chopping duties, which perhaps called for less sophisticated work, including chopping the Yunnan hams.  These are cured in such a way that they are hard and require the application of considerable force with the chopper to get through them.  He says that they needed to be cut to match-box sizes which when cooked up would make stock of the best quality and flavour.

5.  There is a dispute, which needs resolving by me, as to how many hams needed to be cut up each week and how frequently and for how long each time this needed to be done to do the required number of hams.  The Plaintiff started his case by setting out at paragraph 4 of his first witness statement [page 15 of the bundle] that he was required to chop up three to five legs of ham every day.  He then went on the say in the same paragraph that;

“Very often during the busy hours of the hotel, it was not surprising to cut 10 to more than 10 whole Yunnan legs  … Among the people working in the kitchen, I was the only Number 4 chopper.  Therefore, I was the only one responsible for chopping up all the Yunnan hams continuously for 2-3 hours (including the time to fetch the Yunnan ham and wash the Yunnan ham).  Moreover, in order to handle a large amount of customers, I had to chop up the ham in fast speed.  Even when I was tired, I could not stop to take a rest.”

He also went on to describe that apart from that he also had to cut fish, chicken, vegetables, scale fish and prepare other food for a continuous period of 2 to 3 hours.  He also had to clean kitchen utensils, the kitchen working surfaces and the cold room.

6.  The Plaintiff’s working hours were from 11:30 am to 3:00 pm and then from 6:30 pm to 11:00 pm, 6 days a week.  He would report at about 11:00 am so that he could have an early lunch before starting work.

7.  That description of his working routine which describes a daily regime of hard consistent physical use of his right arm (he being right handed) was subsequently amended by him.  When cross-examined by Mr Ramanathan for the Defendant, he conceeded that this account was “too exaggerated”.  He accepted that his duties were varied but never repetitive or intense.  He said in terms that he did not have to do things repeatedly.  He would have to do a variety of tasks, as I have already described them, but these alternated and were done at different times in the course of the working day as the demands of the kitchen required having regard to how busy the restaurant was from time to time.

8.  The other aspect that the Plaintiff toned down considerably related to the number of hams that he was expected to chop up in the course of a week.  The initial impression that was to be gained from his pleaded case and his witness statements was of an employee who was expected to wield his chopper daily for hours on end with little respite in order to produce match-box sized pieces of ham for use in the making of the stock.  By the end of his evidence he was forced to accept that whilst this was a very significant part of his work, it was not necessarily a daily task, and when it was done it was not for the prolonged periods that he had described.  The quantities were substantially less than originally alleged by him and that there would be substantial breaks between chopping hams when he was expected to do other types of work such as cutting up vegetables, preparing fish by cutting and scaling and general cleaning duties to the work surfaces.

9.  Additionally, it has also become clear that the strict demarcation of duties between the various ‘choppers’ which meant that all the hard ham chopping up work fell to the Plaintiff was not actually the case.  The Defence had put to him that the kitchen staff would help out each other as the need arose.  In relation to the four choppers, in the event of sudden demand or urgency he would get assistance with the hams from the more senior staff on an ad hoc basis.  In effect that everybody would ‘muck in’ as required.  As to this, the Plaintiff was not receptive but it is clear, having heard from Mr Lee Yiu Ming, the assistant head chef at the Man Wah during much of the relevant period that this was in fact the case.  In this regard, I prefer Mr Lee’s evidence to that of the Plaintiff, as I do his evidence that the chopping of ham may have been about twice a week, doing 4 to 5 hams on each occasion.  This figure is amply confirmed by the amount of Yunnan ham purchased by the Defendant from 1999 to 2001. [See the Defendant’s letter dated 28 April 2005]  If one takes the best year in terms of consumption, which was 2000, when 3,847 lbs were purchased, this would average out at 10.54 lbs of ham a day.  The evidence, which I accept, is that a typical ham weighs 6.12 lbs giving an average a daily consumption of 1.72 hams a day.  This ‘real evidence’ serves to completely undermine the notion originally advanced that the Plaintiff would on occasions have to chop up ‘10 to more than 10’ hams.  This amply corroborates Mr Lee’s evidence that the task of chopping up ham, although important and significant, was not one that needed to be done for prolonged nor frequent periods.

10.  In respect of this part of the case, I am satisfied that cutting up ham was not necessarily a daily task, in fact more likely than not, it was not needed to be done daily.  The Plaintiff was on my finding required to do this, at most, on four out of six days and on each occasion no more than two hams would have to be chopped up which would not need to be done consecutively.  His duties overall required a variety of work to be done by him of the type already described, interspersed throughout the working day.  Insofar as the Plaintiff’s evidence is inconsistent with this routine, I reject his evidence as being grossly exaggerated and I prefer that of Mr Lee who I found to be completely reliable and truthful.

11.  On this part of the case, I should also deal with two other specific aspects of the evidence which the Plaintiff has relied on, being unsuitable choppers with which to do the chopping and the failure to use the hotel’s electric saw which was located down in the basement.

The Chopper

12.  The complaint here is that the choppers which the staff were required to use, which weighed 1.6 lbs, were too light for the task.  The Plaintiff says that because they were light, greater force needed to be applied in order to produce the required penetration by the blade through the hard meat and the bone and grizzle that make up the legs of ham.  This, he says, has contributed to his condition by putting more strain on the tendons of his right arm.  He has suggested that the heavier type of caste iron chopper with a wooden handle were more suitable because given its greater weight the caste iron chopper would cut through more easily and with less physical strain for the person during this type of work.

13.  Mr Lee’s evidence on this is that the hotel changed to these stainless steel choppers in the interest of hygiene because the caste iron variety were apt to go rusty, with the risk of contaminating the food that was being cut up.  He also says that if a chopper is too heavy, it would soon cause the person doing the chopping to become tired.  The first few blows might well go through easily enough but after some time the repeated raising of the heavier chopper would fatigue the user and put even greater strain on his arm.  It is a question, he says, of achieving the right balance between weight and penetrating power.  Too light, not enough cutting force through the item being cut up, too heavy and the operator soon becomes tired and strains himself.  These choppers, according to Mr Lee, strike the right balance and he has not heard anyone complain about their overall effectiveness.

14.  I accept this evidence.  These stainless steal choppers were in my judgment entirely suitable for the purpose of the Plaintiff’s duties.  I reject this part of his case.

The electric saw

15.  The Plaintiff’s case is that rather than having to go through the hard physical grind of chopping ham manually the work should have been done by using the hotel’s electric saw which was down in the basement.  Its primary use was to cut hard cheese (presumably large pieces of cheddar and the like) and sides of beef and other meat like lamb and pork.  There is no doubt that from time to time this saw has been used to cut up Yunnan ham and that this could be done perfectly effectively and without great physical effort on the part of the operator who would feed the pieces onto the electric blade.  Mr Lee’s evidence in that this was done during the SARS period when the Man Wah closed down.  The coffee shop menu offered dishes which required Yunnan ham.  The coffee shop is on the ground floor and it was convenient to use the electric saw that was located nearby in the basement.  It has also been used when hams are needed for banquets which are served in the first floor private dining rooms.  Mr Lee’s evidence is that in all his 28 years’ working in Chinese restaurant kitchens, nobody has ever considered that anything other than a traditional hand held chopper would be used to chop up hams.  The electric saw was only used exceptionally in the way that I have just recounted.  Chopping by hand is the accepted way and according to Mr Lee, he has never heard of any kitchen worker during this work contracting tennis elbow.

The medical evidence

16.  It is convenient and useful to interpose this evidence at this stage.  Both Dr Tsoi for the Plaintiff and Dr Chun for the Defendant agree that the Plaintiff suffered tennis elbow.  An enquiry into the medical evidence at this stage will provide an answer as to whether the Plaintiff’s employment in relation to his work routine as found by me and having regard to the equipment that he was required to use [the stainless steel chopper] was causative of his condition.  If the answer is that it did not, then the matter would end there in any event; but I propose to go back, as I would have to if I found causation proved, to decide whether the onset of the condition was the result of the Defendant’s breach of duty to the Plaintiff.

17.  Dr Tsoi has observed that the Plaintiff noticed soreness over the right elbow in 1998 although the Plaintiff could continue with his tasks.  From May/June 2000, this worsened and he consulted the company doctor as well as the Occupational Health Clinic.  Their treatment did not relieve the problem.  He was referred to Queen Mary Hospital where tennis elbow was diagnosed.  Injections provided temporary relief.  He received over 100 sessions of physiotherapy but progress was slow.  Sick leave was certificated from November 2000 to April 2001.  The pain improved while he was not required to work.  He returned in April 2001 but this brought the pain back.  He was then given more sick leave which expired in November 2002 and he decided to retire early in December 2002 having been put on sandwich making, which he did not care for, because he could not read the orders that had been written down in English and he also complained of some difficulty with this work in relation to right arm pain.  Dr Tsoi in a very fair and helpful report describes how tennis elbow is not uncommonly seen in middle aged patients with “over use of forearm extensor muscles”.  The activities he recites are “wringing towels, hammering, chopping meat, lifting baggage”.  Having regard to the Plaintiff’s description to him of the work that he was expected to do, of a repetitive and prolonged kind, Dr Tsoi has concluded that this is an occupation related disease.  This having been said Dr Tsoi says that tennis elbow is a “relatively begnin disease”.  Conservative treatment including rest, analgesics, physiotherapy and steroid injections can relieve most symptoms.  In the Plaintiff’s case, Dr Tsoi says that the persistence of the symptoms, despite prolonged sick leave, is rather unusual.  He finds the overall prognosis fair and advises lighter duties which do not entail much right upper limb action.

18.  Dr Chun, for the Defendant, agrees with the finding of tennis elbow.  He says [page 21] that;

“This condition is one of the commonest soft tissue lesions of the arm encountered in daily clinical practice in orthopaedic surgery and in general practice alike.  Every walk of life in society can be affected ranging from housewives, office workers, amateur and professional tennis players and golfers, managers, labourers, male and female, even doctors.  Some patients give a history of injury such as direct contusions like hitting the outer aspect of the elbow or a doorknob.  Other patients have no history of injury at all.

The aetiological stresses often include frequent supination but the primary stressor is repetitive firm grasping which is an action that is required for some workers many thousand times daily.  However, the epidemiological evidence to support the causal association between work activity and tennis elbow is far from conclusive.”

Dr Chun then sets out at pages 22-24, the current state of learning on the connection between repetitive activity at work and its causative effects on this condition.  There is no doubt that there is a considerable body of powerful medical opinion [as appears in Dr Chun’s report and amplified in his evidence in court] that repetitive stress injuries, which are on the rise in terms of complaints, lack a solid pathological basis.  He refers to the fact that this increase, based on subjective complaints only, has caused the British and Australian Governments to pass legislation to refuse claims for compensation unless based on objective medical findings.  It is against the background of this discussion that Dr Chun says that “the fact that a condition results in pain when carrying out a particular task does not necessarily indicate that the task has caused it”.  He has referred to the fact that the Plaintiff’s tasks were varied, not for prolonged periods and interspersed with a variety of other tasks.

19.  As to his examination of the Plaintiff [page 23], he found that there was no muscle wasting of the arm, with the muscle bulk of the dominant right arm well developed as compared to the left.  He considers that a patient with chronic pain and disability of the upper limb that affected his work with moderate or light physical demands [referring to the Plaintiff having been put on light duties on his return from sick leave] would be expected to have suffered significant muscle atrophy.  This was not the case with the Plaintiff.  On examination, Dr Chun found no tenderness to the lateral epicondyle region (where one would expect to find such pain) on moderate pressure and the forced extension of the wrist produced only light pain.  Joint motions were normal.  Dr Chun could find no objective findings of the condition.  He concluded that there was no permanent impairment and no permanent loss of earning capacity with the result that there was no reason for the Plaintiff to retire early from a job he could and should still be performing.

20.  Dr Chun ascribes the incidence of tennis elbow to the ordinary stresses and strains of life – normal wear and tear – and certainly not to the effects of the Plaintiff’s work.  He relies on the absence of intense, frequent and prolonged chopping from the Plaintiff’s work routine.

21.  Where I have found that the work regime did not involve such an intensity and repetitiveness I have come to the conclusion that Dr Chun, for the reasons that he gives, is right in this matter and that what the Plaintiff was required to do has not caused his tennis elbow.  This being my view the Plaintiff has failed to show the crucial element of causation and for this reason alone the claim must fail.

Breach of Duty?

22.  Although that is so, I should for the sake of completeness express my view on whether the Plaintiff has succeeded on this aspect.  The Defendant’s owed the Plaintiff a duty to take reasonable precautions by employing a safe system of work to ensure that the Plaintiff did not suffer injury arising out of the work that he was expected to perform.  This would include providing him with a work regime and equipment that would safeguard him from injury of the type that he complains of, including providing him with instructions and warnings designed to avoid repetitive physical strains having regard to the type of work that he was expected to do.

23.  Based on my findings that the chopping duties were not intensive, nor prolonged or in frequently recurring sessions and that proper equipment was provided, I have no doubt that the Plaintiff has fully complied with its duty of care.  The fact is that the Defendant is, and was, an excellent and understanding employer who did all it could to accommodate the Plaintiff once these symptoms became apparent.  It allowed him lengthy sick leave, paid him as it should have and then put him on light duties to accommodate his wishes.  It would still be employing him had he wished to stay on.  Dr Chun says that there is no reason why he could not be back chopping up hams provided the same regime of variety of work with sufficiently long intervals between types of work was provided, which on my finding was the case.

Conclusion

24.  I am afraid to say that the Plaintiff has failed at both hurdles.  He has not shown any breach of duty, in fact the contrary is the case, and he has not demonstrated that his tennis elbow has been caused by the work that he was employed to do.  Either findings would have resolved this case in the Defendant’s favour.  They have succeeded on both limbs with the result that the action must stand dismissed with costs.  There will be judgment to the Defendant.  The order for costs will be in order nisi together with legal aid taxation of the Plaintiff’s costs.

Quantum

25.  In the event of an appeal, I propose to briefly indicate what I would have said on damages had this issue become relevant.

Pain, suffering and loss of amenity

26.  Mr Chang, on behalf of the Plaintiff, contends for an award of between $180,000 to $200,000 and cites three cases involving arm injuries where the damages under this head varied from $300,000 (Yip Man Leung) to $150,000 (Yuen Wai Kuen) with the case of Gurung Netrabahadur close to the middle of the range, at $250,000.

27.  Mr Ramanathan submits that the correct range is between $75,000 and $100,000 citing cases which did not refer to injuries of this type.  It is right to say that both medical experts agree that the pain should have resolved itself after period of rest, physiotherapy and some injections.  The Plaintiff says he is severely disabled in what he can do with his right hand and arm.  I have preferred Dr Chun’s assessment of his condition which is to the effect that he should, by now, be back to a situation where he can resume his previous employment.  I would have awarded $110,000 under this head to compensate him for two years of some pain and inconvenience which is what it really amounts to.

Loss of earnings for sick leave period

28.  This is agreed at $38,913.

Loss of earnings since his retirement

29.  He was specifically advised by Dr Hooley, the company doctor, that he need not retire.  Dr Chun’s opinion amply confirms this.  In my judgment, he had no claim under this head.  He should and could still be working for the Defendant.

Loss of earning capacity

30.  I accept Dr Chun’s opinion.  He should be back at work and able to do what he had been doing before he contracted tennis elbow.  In my judgment, he has no claim under this head as well.

Other Specials

31.  These are agreed at $6,641.

Future medical treatment

32.  I would have made no award under this head.  He is now recovered.

Interest

33.  This would have been awarded on the usual basis.

The result

34.  Even had he succeeded in proving the necessary elements of his claim, the award would have been a very restricted one totalling less than $160,000 in the way that I have indicated.