LAM WAI CHI v. PROJECT CONCERN HONG KONG

HCPI 78/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.78 OF 2002

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J U D G M E N T

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1. The plaintiff is claiming damages from the defendant employer for tear to the triangular fibro-cartilage complex ("TFCC") of her right wrist. The trial is on both quantum and liability.

I. LIABILITY

Background

2. The plaintiff is a Registered Nurse (General). In September 1999, she was employed by the defendant to work as a part-time nurse in the defendant's clinic. At the end of December 1999, the defendant's clinic closed down. The plaintiff was re-deployed to promote health education at the defendant's Zonta Club Health Centre ("the Centre") situated at 2/F of the Tse Wan Shan Community Centre.

3. On 24 March 2000, DW1 Mrs Ng Chu Lai Fong ("Ng"), Executive Director of the defendant, asked DW2 Mr Tang Kean Wah ("Tang"), a qualified fitness trainer, DW3 Ms Yeung Yim ("Yeung"), a qualified aerobics instructor, and the plaintiff to move three display boards from the Centre down to G/F of the Community Centre. Tang was in charge of the operation.

4. The display board is made of compressed pulp wood board mounted on a metal frame. It measures 76 inches high, 42 inches wide and 1.5 inches thick. The pulp board itself did not extend to the base. The base metal frame was attached to two metal bars extending sideway in the shape of four prongs. There are four castors attached to the four prongs. There is a gap between the horizontal base of the pulp board and the metal base. The whole structure weighs about 60 pounds.

5. The Community Centre is not serviced by lift. The board had to be moved down the U-shape staircase. The staircase is 53 inches wide, the staircase ceiling is 107 inches high, and the gradient is 28?.

Plaintiff's evidence

6. The plaintiff said that at about 9:50 a.m. on 25 March 2000, Tang, Yeung and herself started to move the first board which was placed by the 2/F landing of the staircase. There was no discussion before the move. Tang just said "Let's move the board". They moved the board in an upright position. Tang went in front. He held the vertical edge of the metal frame. He descended the stairs backwards. The plaintiff and Yeung were at the other end of the board, the plaintiff on the left and Yeung on the right, both facing Tang.

7. The plaintiff used her right hand to hold vertical edge of the board, and her left hand to hold the horizontal base of the pulp board.

8. The two castors nearer to Tang left the landing first. When the two castors nearer to the plaintiff and Yeung left the landing, the plaintiff suddenly felt the board sink and she instinctively lift the board lest it would fall onto Tang who was a few steps down. The plaintiff heard a "click clark" sound at her right wrist. At this critical moment, no signal was given by Tang or Yeung. Also, the plaintiff saw Yeung was only using her left hand to hold the board. She felt that Yeung was not using any or sufficient force. But after this moment, Yeung used both hands (one on the vertical edge and the other on the horizontal base of the board) until the end of the task.

9. At the time, the plaintiff felt something wrong with her right wrist but no pain. She did not alert her colleagues about it. She managed to finish moving the board and continued to move two more boards.

10. Later in the morning, the plaintiff went to return some health education materials at the Department of Health in Tsuen Wan and to borrow more. She said she was carrying bags of materials with both hands together. During the return trip, she told the driver Fung Kwan Shing ("Fung") that she had problem with her right writ without telling him the cause. Upon arriving at the Centre, Fung helped her to take the bags to the 2/F.

11. After lunch, the pain and swelling worsened. She had difficulties handling chopsticks and operating the Auto-Teller Machine. She went to see Dr Hillary Koo, a private practitioner, and was referred to the A&E Department of Princess Margaret Hospital.

12. On 29 March 2000, there was a meeting attended by Ng, Yeung and the plaintiff. The plaintiff said Yeung admitted that maybe when the display board was lifted from the ground, she did not exert force.

Defendant's evidence

13. Ng said she did not carry out any particular assessment on how to move the boards because it was a fairly simple task and the boards were not heavy. He told Tang to be in charge and the others to help out.

14. Tang said he had experience of lifting the display boards before. The three of them wheeled the first board from the far end of the corridor to the 2/F landing. Before moving the board, they had discussed how to do it. They have discussed carrying the board lying sideway but it was dismissed as unworkable. Yeung said carrying the board sideway might not work because they had to negotiate the corner of the landing between 1/F and 2/F. They had not done any measurements nor trial run, but Yeung said it would be unworkable or difficult as one had to add the persons to the length of the board lying sideway.

15. Tang adopted the position as described by the plaintiff. Yeung said she held the vertical edge of the board with both her hands, and she was leaning against the vertical edge to keep her back straight. She denied holding the horizontal base of the board as she had to bend her back to do so. She also denied using only her left hand as her right hand was the dominant hand. She could not see the plaintiff's hands because her head was on the right hand side of the pulp board and her sight was blocked.

16. At the critical moment (i.e. the last two castors left the landing), Tang stopped and there was a pause in the movement. Tang gave the signal "going down". Yeung moved forward and the movement of the board continued.

17. At some stage, Yeung saw the display board tilt to his right about 30? to 40? and the plaintiff stopped to shake her wrist without saying anything.

18. When the plaintiff went to Tsuen Wan, Fung saw she use her right hand to carry at least two black bags of 25 pounds each. Fung denied the plaintiff had told him that there was anything wrong with her wrist. Upon arriving at the Centre, Fung helped her to take the bags up to 2/F out of gentleman's courtesy.

19. Ng said the meeting with the plaintiff and Yeung was not on 29 March 2000. It was after the plaintiff handed in her Report on Injury on Duty dated 17 April 2000, and probably on 20 April. Yeung said she never made any admission of using one hand nor not using sufficient force at the meeting. Ng confirmed her evidence.

Plaintiff's case

20. The plaintiff's case is twofold :

(1) The defendant as employer failed to provide a safe system for manual handling operation by employees collectively, or alternatively, it failed to take appropriate steps top reduce the risk of injury to the plaintiff to the lowest level reasonable practicable;

(2) The defendant is vicariously liable for the negligence of Tang in failure to properly co-ordinate the synchronized exertion of force in the collective lifting operation.

21. The plaintiff is relying on the following provisions of the Occupational Safety and Health Ordinance (Cap. 509) :

"6(1) Every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer's employees.

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

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

...

(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;"

22. The plaintiff is also relying on the following provisions of the Occupational Safety and Health Regulations (Cap. 509A) :

"23(1) Before manual handling operations are first undertaken at a workplace after the commencement of this Part, the person responsible for the workplace must ensure that a preliminary assessment is made of the risks to the safety and health of employees employed at the workplace who undertake those manual handling operations.

...

24(1) The person responsible for a workplace must, as far as reasonably practicable, avoid the need for employees employed at the workplace to undertake any manual handling operation which may create safety and health risks.

...

25(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.

...

27(1) The person responsible for a workplace must, before any manual handling operations which may create safety and health risks are undertaken by employees employed at the workplace, ensure that-

(a) appropriate steps are taken to reduce risks to the safety and health of the employees employed at the workplace who undertake those manual handling operations to the lowest level that is reasonably practicable; and ..."

23. Under regulation 22 of Cap. 509A, "manual handling operation", in relation to a load, means moving or supporting the load (including lifting, lowering, pushing, pulling and carrying the load) by a person's hands or arms or by some other form of bodily effort.

24. Mr Yau, for the plaintiff, submitted that the following factors, under both Schedule 3 to Cap. 509A as well as the pamphlet on manual handling operation published by the Labour Department, are relevant in this case :

(1) manipulating objects at distance from the body;

(2) losing balance when lifting objects;

(3) sudden bearing of objects of unknown weight;

(4) lifting or lowering objects in a narrow space;

(5) holding objects that are heavy, bulky, hot, pointed, sharp or difficult to grasp;

(6) working on surfaces that are slippery, uneven or with obstructing object;

(7) inco-ordination or concentration of weight on one party when lifting collectively;

(8) forcing oneself to lift over-weight or over-sized objects.

25. Mr Yau pointed out that in prosecution under the Occupational Safety and Health Ordinance, the onus of proving any compliance was not reasonable practicable is on the defendant. The position is likewise in civil proceedings (see Hawkes v. London Borough of Southwark, Court of Appeal (Civil Division), England, unreported 20 February 1998 on Lexis, in the context of the Manual Handling Operation Regulations, UK, which are similar to our Occupational Safety and Health Regulations).

26. Mr Yau clarified that the gravamen is not weight but synchronised application of force, i.e. to give a signal so that everyone started to exert force at the same time. Mr Yau also suggested that the board should have been lifted up before the castors left the landing such there was no sinking. Mr Yau did not rely on the alternatives suggested in the pleadings, such the use of a ramp, or avoiding the operation by say, putting the display board on 2/F or not holding any exhibition, etc.

27. Mr Yau submitted that carrying the display board side way will prima facie reduce the risks involved, because the height of the board is reduced, and the protruding prongs provide natural handles for the carrier. In the event that the court accepts the plaintiff's evidence that there was no such discussion, or reject Tang and Yeung's evidence that it was impracticable to do so in view of the tight corner, there is a breach of regulation 27 of Cap. 509A.

Defendant's case

28. Mr Ismail's, for the defendant, primary submission is that the plaintiff is not a credible witness, and she has failed to prove the facts of the accident.

29. Secondly, Mr Ismail submitted that there is no breach of duty on the part of the defendant. The duty of the employer is not absolute, but is measured by the standard of reasonable foresight. The duty on the employer is only to take reasonable care. The employer is not required to insure the safety and freedom from accident of his employees (see Flowerday v. Visionhire Ltd, Court of Appeal (Civil Division), England, unreported 16 October 1987 on Lexis, per May LJ at p.2).

30. Although Ng said she did not undertake any particular assessment, in effect, she did make an assessment :

(1) it was a fairly simple task;

(2) three persons were deployed to move the display boards;

(3) the three persons had knowledge or training in lifting weights.

31. Tang is a qualified fitness instructor and has experience in lifting the displays boards before. Yeung is an experienced weight lifting trainer. The plaintiff is trained in lifting patients and she admitted she knew how to lift weight. They had the requisite training independently.

32. Given that three persons of such background were deployed, the task was fairly simple and it is a matter of co-ordination between them. It was reasonable for the defendant to leave the details of the execution of the task to them.

33. Mr Ismail referred to Winter v. Cardiff Rural District Council [1950] 1 All ER 519, per Lord Oaksey at pp.822 to 823 :

" In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. ... where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot."

34. Mr Ismail also referred to Smith v. Austin Lifts Ltd [1959] 1 WLR 100 per Viscount Simonds at p.105 :

"I, turn, then, to the first respondents, the employers... It was their duty to see that the place at which their workmen were to work was reasonably safe. That is a generalization which can only be applied after a consideration of what is in all the circumstances reasonable, and it is, it think, always important to bear in mind a principle emphasized in Winter v. Cardiff Rural District Council that there is a sphere in which it is reasonable to leave to a skilled workman the decision whether the difficulty that he encounters is one in which he needs help. I deprecate any tendency to treat the relation of employer and skilled workman as equivalent to that of a nurse and imbecile child ..."

35. It was submitted a lack of synchronization may not be due to anybody's fault. It may be "just one of those things which happen, without blame resting on anybody" : see Sowerby v. T.F. Maltby Ltd [1953] 1 LL Rep 462 per Stable J, a case which involved a lack of perfect co-ordination between two workers when lifting bags of sugar in what the judge described as an "arduous and difficult operation" :

"... the synchronization was not perfect. Whose fault that was, it may have been it was not anybody's fault in the sense that fault means fault, but it was simply that these two men were not as well rehearsed as they would have been if they had been working with their opposite number."

Assessment of the evidence

36. The first issue of the case is whether the accident occurred in the way described by the plaintiff. It is important to note that the plaintiff did not report the accident at the time it allegedly happened, and that the "click clark" sound at the time of moving the board was the cause of the injury depended on the evidence of the plaintiff.

37. Mr Ismail submitted that the plaintiff was not a witness of truth and the alleged factual basis had not been established. There are the following criticism of her evidence :

(1) Inconsistent versions of the accident

In evidence, the plaintiff said the display board sank when the two rear castors were pulled away from the landing, and the display board suddenly became heavy and she injured her wrist when trying to arrest the fall. In contrast, her previous version was that she was injured when the board was just lifted (or lifted up) from the staircase and she felt it was too heavy : see her Report on Injury on Duty to the defendant dated 17 April 2000; her declaration to the Labour Department dated 28 June 2000; the Statement of Claim dated 28 January 2002; the witness statement dated 11 June 2002 and supplemental witness statement dated 11 July 2002.

(2) Conduct inconsistent with injury

(a) The plaintiff never uttered words of "too heavy" or "slow down". She continued to move two more display boards. Later in the morning, she still carried the black bags of health education materials.

(b) In evidence the plaintiff said she felt something wrong but no pain. In contrast, she said in her witness statement she felt pain but it was not severe.

(3) The total lack of discussion and co-ordination before the task and the instinctive taking up of the respective positions after Tang said "let's move it" was inherently implausible.

(4) The alleged admission by Yeung not credible

(a) In the Declaration to the Labour Department, the plaintiff first alleged that Yeung said maybe she did not exert any force when the display board was lifted up. In her first witness statement, the plaintiff categorically said Yeung said she did not begin to use any force. However, upon the statements of Yeung and Ng denying any such admission, the plaintiff stated in her supplemental witness statement that Yeung only used her left hand and that might be due to overestimating her strength or underestimating the weight of the display board, and Yeung admitted that she might not put in any force to grab the display board when all the four castors were just off the ground.

(b) It is surprising that the Report on Injury on Duty dated 17 April 2000 never referred to the meeting if it took place on 29 March 2000. Even more surprising was that the Report never directly nor indirectly alleged that Yeung made any admission or at least mentioned that she did not use sufficient force. At the end of the Report, the plaintiff even apologised for causing all the inconvenience.

(c) If the plaintiff really felt that she injured her wrist because Yeung had only used her left hand and not exerted enough force, the is no reason for her not to confront Yeung at the scene in order to avoid the same in moving the two more display boards.

(5) Doubt as to how the plaintiff's wrist could have been injured The plaintiff's left hand was at the horizontal edge of the wooden board. If the display board suddenly sank, the left hand would be bearing more weight. It would be difficult for the left hand to exert any substantial force at the vertical edge.

(6) Intention to resume full time job at time of accident incredible The plaintiff was cross-examined as to why her original claim of pre-trial loss of earnings was based on full-time equivalent salaries from the date of the accident. She said before the accident, the family had bought a property on mortgage and she wanted to augment the household income. She had enrolled in a one year course on geriatric nursing before the accident and it was her intention to resume full time work but for the accident. She agreed that in her witness statement, she said she would resume work, which she meant full time work, when her children were mature enough to look after themselves. She agreed that mature enough to look after themselves normally meant between age 11 to 14. When pointed out that her younger child was only about four at the time of the accident, and she was not in a position to resume full time work for some years to come, she explained that age 11 to 14 referred to puberty, and mature enough to look after themselves meant they were off bottle feeding and diapers.

38. Mr Ismail submitted Yeung had a financial interest to serve, while Tang and Yeung had already left the employment of the defendant in 2001 and had no vested interest in defending the action.

39. In reply, Mr Yau made the following submissions :

(1) As the accident happened in split seconds, the description of it might cover both the board was sinking as well as lifting. The plaintiff explained that "lifting" or "lifting up" meant the entire task of moving the board downstairs, while "sinking" referred to the critical moment.

(2) The absence of the reference to the meeting in the Report on Injury on Duty has only one valid point : the plaintiff may be mistaken as to the date of the meeting. The plaintiff explained that she did not laid blame on Yeung because that was not the purpose of the Report.

(3) The plaintiff had complained to Dr Koo of spraining the wrist while carrying the display board, and Dr Danny Choi, the plaintiff's expert, said the tear of TFCC was consistent with the accident described by the plaintiff.

40. Mr Yau submitted that he is not relying on the admission of Yeung because it is qualified by the words "perhaps". At any rate, the plaintiff's memory might not be perfect. However, Mr Yau still invited the court to make a finding that Yeung did not exert enough force.

41. Mr Yau also criticised the evidence of the defence witnesses :

(1) Tang did not mention in his witness statement what signals he gave during the moving, and his explanation was he was not asked about it. He often prefaced his answers by "usually".

(2) In evidence, Yeung gave detailed descriptions of how she held the edge of the board. But in her witness statement, she said she could not recall in details her hands' position save that she would have put them in such a way on the edges of the board to balance it, so that it would not tilt.

(3) The way that Yeung had pressed her body against the vertical edge of the board would make it difficult if not impossible for the plaintiff to hold on to the edge of the board.

(4) Fung only mentioned in his witness statement that the plaintiff carried some black bags, but not specifically mentioned with her right hand.

42. Mr Yau submitted that because Tang and Yeung were not alerted to the accident at the very time, it was natural for them to assume that the operation had gone on smoothly, and are now defensive that anything has gone wrong.

43. I am not impressed by the plaintiff as a witness. She attempted to gloss over the inconsistencies with strained explanations. Her intransigence in not admitting to the error even after concession to reduce the original inflated claim for loss of pre-trial earnings has been made by her counsel is not giving her any credit either.

44. I disagree with Mr Yau that the failure to mention the meeting in the Report on Injury on Duty only showed the plaintiff was mistaken as to the date of the meeting. The discrepancy of the date itself is important as 29 March and sometime after 17 April 2000 are far apart, and not a mistake the plaintiff was likely to make as she had the habit of noting events in writing. I find that the plaintiff is trying to paint the picture that Yeung made an admission very soon after the accident. Moreover, there is another point relating to the cause of the accident. By 17 April 2000, the plaintiff stated the wrist injury was serious and she was still on physiotherapy. The issue of compensation must have been a live issue. Regardless of whether the Report was before or after the meeting, and regardless of any admission by Yeung, I fail to see why the plaintiff did not mention that Yeung did not exert sufficient force as she regarded this as a cause of the accident. I do not think the statements in the Report that Yeung was using her left hand, and the plaintiff found the board too heavy were implicit allegations as such. Indeed the plaintiff did not so argue, but she simply explained that the purpose of the Report was not to lay blame on anyone.

45. It is not plausible that Tang never gave any signal and the operation went on silently. Tang was descending the stairs backwards, and the weight of the board was on him. It is natural for him to keep the concerted pace of the descent, at least for his own safety if not also for the others.

46. I do not accept the plaintiff's evidence. I find that Tang has paused and said "going down" before the castors left the landing. I find that Yeung never said maybe she had not used enough force.

47. In the premises, I do not find negligence on the part of Tang by reason of lack of co-ordination.

48. I find that the considerations under the Occupational Safety and Health Regulations and the tort of negligence are co-extensive (see Hawkes v. London Borough of Southwark, op. cit.).

49. I agree that the manual handling of the display board involves a risk of injury. However, the display board is not too heavy nor too bulky for three persons to handle, especially they knew about the risks involved in lifting, and the importance of synchronised exertion of force. Any reasonable person in charge undertaking an assessment, taking into account the factors mentioned by Mr Yau, would have come to the same conclusion as Ng. Assigning three such persons is a reasonable assessment to reduce the risk to the lowest level practicable.

50. I find that lifting the display board by three persons with training in lifting falls within the sphere where the foreman and workers must exercise their discretion and co-ordination in the execution of the task as envisaged in Winter v. Cardiff Rural District Council.

51. I find that Tang did discuss with the others the alternative means of moving the display board sideway. The conclusion that it was impracticable was challenged by Mr Yau. From the photographs of the staircase, which is the only evidence about the landing on the 1/F and 2/F, I accept the evidence of Yeung that the corner was too tight by visual reckoning. I accept that it was not a reasonable practicable alternative.

52. I am also satisfied that moving the display board in an upright position by three persons is not an inherently unsafe method. The matter is one of co-ordination.

53. I have already rejected the plaintiff's evidence on lack of co-ordination by Tang. Mr Yau submitted that alternatively, I could infer from the evidence that Tang gave the signal and Yeung moved forward without giving a responsive signal, that there was lack of co-ordination in any case.

54. This alternative version that Yeung exerted force too soon without alerting the plaintiff is inconsistent with the plaintiff case that Yeung did not start to exert force at the critical moment. This version has not been pleaded nor the other party has not been given full opportunity to deal with it, in cross-examination or otherwise. It was only raised in the plaintiff's final submissions. It is not right that the court is invited to find liability on this basis. At any rate, as I am not satisfied with the plaintiff's credibility generally, there is still the difficulty of proving causation.

Conclusion

55. In the premises, I am not satisfied that the plaintiff has proved the case.

II. QUANTUM

56. In view of my conclusion on liability, it is not necessary for me to deal with quantum.

Costs

57. I make an order nisi that the plaintiff is to bear the costs of the action.