MA SHU NIN v. KAMBOAT CHINESE CUISINE CO LTD

HCPI 1148/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1148 OF 2005

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REASONS  FOR  JUDGMENT

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1.  The plaintiff claims damages for personal injuries suffered as a result of an accident which he says befell him in the course of his employment with the defendant on 4 January 2003 when he suffered a sprained back.  A split trial was ordered and this was the trial on liability only.  At the close of the trial, I found the defendant liable and the plaintiff not liable for contributory negligence.  I now give reasons.

2.  The plaintiff was a dim sum master.  He claims that he was instructed to carry a basket of chicken feet weighing about 40 catties and a block of turnip cake from the ground floor to the first floor of the defendant’s restaurant.  To do so, he had to use a passage to the elevator.  The passage was blocked by something variously referred to in the pleadings as a rubbish cart or rubbish trolley but which was in fact a plastic wheeled bin.  He had to get past the bin by balancing the basket on it while he squeezed past between the bin and the wall.  As he was doing so, another employee of the defendant moved the bin, and the basket started to fall.  In the attempt to save the basket from falling the plaintiff was pushed backwards so that his shoulder hit the wall and he sprained his back.

3.  The plaintiff claims in negligence, breach of contract of employment, and breaches of statutory duties under the Occupational Health and Safety Ordinance and the Occupier’s Liability Ordinance.  Basically the claim is one of unsafe place and system of work.

4.  The defendant denies that the plaintiff met with the accident as pleaded by him.  In particular it denies that a basket of chicken feet weighed 40 catties or that he was instructed to carry two items.  It is further denied that the bin was of such height that if articles fell from the top, they could cause injury to the plaintiff’s head.  It is further averred that trolleys were provided for the use of staff, and they had been advised to use them; and that the rubbish collecting work was contracted out to one Nixon Cleaning Co. Ltd whose worker collected rubbish from the bin daily between 7 and 9 a.m.  Negligence and breach of statutory duty are denied.  Further the defendant pleads that the plaintiff was negligent; he should have used a trolley, or waited for the rubbish collectors to move the bin, or put the basket down and moved it himself.  Also he should have kept his balance and kept a proper lookout.

5.  By way of Reply the plaintiff denies that trolleys were readily available in the kitchen at the time.  He does not admit that there was an independent cleaning contractor but avers that if there was one, the staff or representative of that contractor who blocked the passageway and pulled away the bin was acting as agent of the defendant, and the defendant was vicariously liable for her negligent act. 

Evidence

6.  This comes only from the plaintiff.  The defendant chose to call no witness.

7.  The plaintiff says in his witness statement that the accident happened at about 8 a.m.  His supervisor, known to him as “Big Brother” told him to take a 20-30 catty basket of chicken legs to the refrigerator on the 2^nd floor.  Then one Ah Fai asked him to take a 10-catty block of turnip cake as well.  The whole load, i.e. the basket of chicken feet with the turnip cake on top of it, weighed about 40 catties.

8.  To get to the lift, the plaintiff had to walk through a corridor.  There were shelves, tables and the like in the corridor.  He found the bin in the middle of the corridor also.  There was no room for him to get past with his load.  He waited for 2-3 minutes for someone to come and move the bin, but no one did; so he tried to squeeze past between the bin and the wall, balancing the load on the edge of the bin.  As he was going past, he felt the bin move, as if someone were moving it.  He lost balance and the load fell, hitting his chest and knocking him backwards.  He let go of the load, and his back hit something, probably the wall.  His hand got scratched on metal on the wall.  He grabbed the load gain, but fell forward.  He felt pain at his waist, back and left leg.    

9.  The plaintiff says that he shouted for help and Big Brother came to see if he was injured, stuck a bandage on his hand and asked him to go on working.  It was only later, when the pain worsened, that he went to hospital.

10.  In a supplementary witness statement the plaintiff says that he had been looking for a trolley, just before the accident, to take buns and dim sum to the 2^nd floor for sale.  Trolleys were kept at the 1^st floor restaurant stairway or the 2^nd floor corridor.  He had gone to the 1^st floor restaurant to look for a trolley but had not found one.  He was on his way to the 1^st floor stairway, via the dim sum department, when Big Brother saw him and asked him to take the chicken legs to the refrigerator. 

11.  The plaintiff’s oral evidence consisted mainly of confirmation and clarification of what was in the statements.  He was referred to a statement which he had made to the safety officer, but there was really no major difference between what he had written there, his statements, and his oral evidence.  In fact in that statement he said that the bin was “suddenly pulled away”.

12.  The plaintiff had not, in statements, identified the person who moved the trolley.  In oral evidence he said that he had seen the person when the bin was pulled to the end of the corridor and round the bend.  The person was the lady worker who collected the garbage.  He described her as in her 50s, and “hump-backed or bent over”.  He did not know who employed this lady, but she did not wear uniform; she wore her own clothes.  He had seen her in the restaurant before.  He did not see her coming because his view was blocked by cardboard sticking up out of the bin.

Evaluation

13.  The plaintiff seemed a very straightforward and careful witness.  There is nothing to contradict his evidence.  The reference to and description of the hump-backed lady worker is not a recent fabrication.  It was foreshadowed in the letter before action and the statement to the safety officer, as well as in a series of Further and Better Particulars of both the Statement of Claim and the Defence. 

14.  It is clear from the latter Particulars that the defendant or its solicitors took an obstructive position with regard to the identification of the lady worker.  If she had indeed been employed by the cleaning contractor, it would have been easy enough for the defendant to make that clear. 

15.  In fact the contract between the defendant and the cleaning contractor provides for cleaning and removal of “swill” between 9 and 10 a.m. and between 4 and 5 p.m.  According to the plaintiff the accident happened at 8 a.m. so the lady probably was not an employee of the cleaning contractor.  Some attempt was made to rely on the plaintiff’s medical history given on his attendance at the hospital.  It appears that the doctor recorded that the accident happened at 2 p.m.; but then he also recorded that the plaintiff had fallen from a height of 1 metre.  The doctor was obviously confused.  But even if the accident had happened at 2 p.m. there would still have been no reason for any of the cleaning contractor’s workers to be present.

16.  The plaintiff’s solicitors have also attempted to obtain and put before the court the evidence of the “Big Brother”, a Mr Tai.  Again, it appears that the defendant’s solicitors took a completely obstructive approach.  They insisted that the plaintiff obtain and exchange a witness statement.  However it appears that when Mr Fai was approached he told the plaintiff’s solicitors that “the company lawyer” had told him not to give them a statement.  The defendant’s solicitors had told the Master at a checklist hearing that they would call Mr Tai.

17.  This is obviously unfortunate.  Mr Tai is the one who told the plaintiff to carry the chicken legs to the refrigerator and he was on hand almost immediately after the accident.  He could surely have assisted with the identification of the lady worker.

18.  Where a party fails to call a witness whom that party might reasonably be expected to call, such failure may give rise to the inference that the witness’s evidence would not have helped that party’s case.  See Li Sau Keung v Maxcredit Engineering Ltd & Anor, CACV 16 of 2003, unreported, 25 November 2003, per Le Pichon JA at pp. 11-12. 

Findings

19.  There is nothing to contradict what the plaintiff says about the accident and how it happened, and I believe what he says.  He cannot say with certainty who the lady worker was, or who employed her.  That she did not wear a uniform is equivocal, because although there is evidence that the plaintiff had to wear one as a dim sum master, there is no evidence concerning other types of employee.  Mr Tai was the dim sum supervisor; I cannot speculate on what his evidence might have been, but I can and do take the defendant’s failure to call him as indicating that his evidence would not have helped their case.  The inference in all the circumstances must be that the lady worker was employed by the defendant, and I so find. 

20.  It is clear that the plaintiff had been looking for a trolley, for another purpose, when he was instructed by Mr Tai to take the chicken legs to the refrigerator.  He was forestalled, in his search for the trolley, by his superior.  It cannot be said that he should have refused to take the chicken legs, until he could find a trolley.  It was reasonable, once he was carrying the chicken legs, to accept the turnip cake as well.  This would give him a load of about 40 catties, over 50 pounds, but in normal circumstances that would not be unsafe. 

21.  Once the plaintiff got to the corridor he found the bin blocking his way.  He waited for a while, before trying to get past.  I do not see what else he was to do.  It is surely not normal to find a big wheeled bin of food left-overs and rubbish in a restaurant corridor; in the normal way, food, whether cooked on trays, or raw in large and heavy packages, is carried about in restaurants, and an obstruction in a corridor entails a risk of spillage, and danger to persons especially if the food is hot.  It also creates inconvenience.  The plaintiff could reasonably expect someone to move the bin shortly.  There was, it appears, nothing on which he could easily put down his load, so that he could move the bin out of his own way.  If he had set the load down on the floor, the lifting of it thereafter might have been dangerous; it is the sort of thing which often gives rise to back injury claims. 

22.  As it was, nobody came to move the bin.  The plaintiff tried to squeeze past the bin.  He had to balance his load on the edge of it, to do so.  He says that this was at upper chest height.  He also agrees, and Mr Gidwani places much reliance on this, that walking through the gap was “OK”, and that if the bin had not been moved, he could have got through safely.  I do not for my own part see that balancing a 40 catty load on the edge of a bin, whilst manoeuvring past it is safe; there must always be some risk that the load will go out of balance.  In any event, it was the action of the lady worker in moving away the bin which directly caused the accident. 

23.  It is argued that there was nothing unsafe in the place or system of work.  The accident was an isolated incident, and caused by the act of an unidentified worker rather than the employer’s failure to maintain a proper system of work.  The situation was merely awkward and not dangerous.  Further this was “one of those things which happen, without blame resting on anybody”, to use the words of Stable J in Sowerby v T. F. Maltby Ltd [1953] 1 LL Rep. 462.

24.  I do not see that there was anything particularly unsafe in the system or place of work in the normal situation.  However, once the bin was left partly blocking the corridor, the place became unsafe; an obstruction is bound to create a risk of danger in an environment where hot food or heavy objects are carried about.

25.  At the end of the day, however, it was the action of the cleaning lady in leaving the bin blocking the corridor created the danger.  Once she came to move the bin, she cannot have been keeping a proper lookout as she approached, or she would have been seen the plaintiff beside the bin, and she would have been able to see what he was doing.  Her action in moving the bin was negligent.  She was, on my finding, employed by the defendant; and so the defendant is vicariously liable. 

26.  As to contributory negligence, it cannot be said that the plaintiff was at fault in trying to get past the bin, as best he could.  He waited for a few minutes but no one came.  I accept that he could not see the approach of the lady worker, because of cardboard sticking out of the bin.  In any event he would be concentrating on what he was doing.  I do not see that the plaintiff was at fault.