MAN KWOK NGAI v. FONG HOK WANG AND ANOTHER

HCPI 1033/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO. 1033 OF 2001

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J U D G M E N T

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1. This is a claim for damages on behalf of a young boy, 5 years of age at the time and now 71/2 years old. He was severely scalded by some hot soup spilt on him in a restaurant known as Yue King Restaurant in Union Plaza, 9 Wo Muk Road, Sheung Shui (or Fanling?) in the New Territories.

2. The 1st Defendant was the owner of the restaurant business and the 2nd Defendant was his employee as cook or preparer of certain foods. Interlocutory judgment was obtained against the 1st Defendant last year.

3. The accident happened on 8 August 2000 at about 1:00 pm. The young Plaintiff was in the restaurant with his mother and elder brother having lunch. At the time when the mother went to the cashier to pay the bill having finished the meal, the Plaintiff ran to leave the restaurant, following his brother. As the Plaintiff approached the exit leading to the shopping arcade, the 2nd Defendant emerged from the kitchen and entered the restaurant carrying a bucket or puncheon of hot soup; there was no cover over it. The defence of the 2nd Defendant alleges that the Plaintiff ran into him, thereby causing the hot soup to spill out onto him. It alleges that the mother was negligent in not keeping proper control over her son; she has not been joined as a Third Party.

4. Before considering the evidence, it is pertinent to point out that young children do run around the restaurants of this nature. The meal had finished, the mother had quite reasonably gone to the cashier to pay for the meal and could not be expected to keep hold of a 5-year old child who was no doubt as eager to leave as his brother and was simply following after him. Restaurants and their employees should be prepared for young children to be moving about and perhaps obstructing their path. In view of the fact that waiters and the other staff will be carrying hot food into the restaurant, employers should always be prepared for customers to be moving about at the same time.

5. On this occasion since an employee was carrying a large container of hot soup, every precaution should have been taken to ensure that the risk of spillage was reduced. It obviously was not. The container of hot soup shown in the photographs did not have a cover. That was an obvious hazard. It is also apparent from the evidence of the mother and the plan produced by her that one of the access points from the kitchen to the restaurant itself is outside the restaurant, indicating that food from the kitchen is taken in through the entrance or exit of the restaurant in the shopping arcade. This itself poses a risk because it is obvious that customers will be using that access to enter or leave the restaurant, as happened on this occasion. I have seen a photograph of this entrance or exit and the distance between it and the kitchen exit is quite short.

6. A written statement was made by the 2nd Defendant on the 28 August 2000, nearly three weeks after the accident. He described carrying the bucket of hot soup, more than half full from the kitchen, in his left hand to the shopping arcade access to the restaurant, when the Plaintiff ran and "crashed into the metal bucket". The Plaintiff's left hand went into the bucket. He and the bucket fell to the ground.

7. The 2nd Defendant has given evidence and more or less confirms the contents of that statement. The plan clearly shows an access point from the kitchen directly into the restaurant. The reason that the 2nd Defendant did not use that other and direct access to the restaurant from the kitchen, which would have been safer and more convenient, is he says, that there were other persons and miscellaneous items in the kitchen near that exit which made it difficult. I did not find this explanation convincing. It is clear from the positions drawn by the 2nd Defendant on the plan that both he and the boy were within the restaurant although near the exit when they came into collision.

8. The 2nd Defendant called on his behalf another former employee, a Mr Tse Tin Bo. The fact that Mr Tse had some evidence to give was not known to the 2nd Defendant, or it appears to his former solicitors, until a few days ago. I found his evidence somewhat unreliable and perhaps embellished by descriptions of the Plaintiff running in and out of the restaurant and shouts by restaurant staff that it was dangerous for him to be running all over the place. No such evidence had ever surfaced before. I allowed him to give evidence although no statement had been obtained from him, because the 2nd Defendant has been unrepresented at this hearing. Judgment in fact had been obtained against his employer, but there were clear findings of fact sought by the Plaintiff which justified the action continuing against the 2nd Defendant.

9. The cause of this accident was the carelessness of the Defendants in permitting soup to be carried in an uncovered bucket from the kitchen through to one of the two entrances or exits of the restaurant. This was a busy lunch time. Customers would be going in and out. There were children there and children were expected to be there. Children are known to run about and be less aware of the dangers of which restaurant owners and their employees should be well aware.

10. Carrying hot liquid in large uncovered containers poses a hazard for all such customers. The employee himself carrying such a container might slip and thus lose control of such a container and its contents. It was entirely foreseeable that they would thus splash on the customers.

11. This accident was entirely foreseeable. I am satisfied that it happened inside the restaurant and that the 2nd Defendant did not see the Plaintiff until just before the time of contact. He is still a small boy at the age of 7 and 21/2 years ago would have been very small. At that age he was in my view too young to be held to have been contributorily negligent in any event. His mother, whose evidence I accept in its entirety, although alleged to be negligent was, in my judgment, not so.

12. As far as the system of transporting the soup was concerned it was unsafe and obviously so. The bucket, if an appropriate form of container, should have been covered. It would have been preferable and sensible to use a trolley to move it. In any event, the access from the kitchen directly into the restaurant should have been used.

13. The 1st Defendant, as employer, was negligent in that the system he devised for transporting the soup was unarguably unsafe. It posed a clear hazard. He was in breach of his duty of care to his customers. As I have said it was clearly foreseeable that customers in general and children in particular were at risk. His employee, the 2nd Defendant, was negligent in failing to see or take account of the Plaintiff. He gave his evidence in an extremely frank and reasonable way. He seems not however to have been prepared, for the swift movement of anyone towards that particular exit. He could have used the other access to the restaurant, as an obviously safer means of entry to where he had to take the soup.

14. There will therefore be final judgment with costs for the Plaintiff against both Defendants, that against the 2nd Defendant being by virtue of the fact that he was the servant or agent of the 1st Defendant. The 1st Defendant is vicariously liable for his negligence. I order that no judgment against the 2nd Defendant shall be enforced without the leave of this court. It is not his fault that this action has not been contested by the 1st Defendant through his, the 1st Defendant's, insurers.

15. I turn to the question of damages. I have had the opportunity of seeing the resultant scarring and pigmentation. There has obviously been considerable progress since the photographs were taken by Dr Otto Au. I would however, like Dr Au to see him again to report particularly with an evaluation of the treatment available and its likely effect, as I have discussed with Miss Josephine Pinto. Counsel appearing for the Plaintiff.

16. With the commendable and reasonable attitude of Mr Fong, a number of the items of special damage have been agreed or valued without real argument. These are medical expenses in the sum of $4,078.00, travelling expenses of $4,260.00 and medical items of $712.00. These were agreed before trial.

17. Tonic food is claimed at $13,660.00. It is largely bird's nest soup. I think that this is too high a figure to be reasonable, but bearing in mind the nature of the injuries and this boy's age and need for special treatment, I would allow the sum of $7,500.00. The baby-sitting allowance for his aunt is allowed at $1,050.00 and the special care claim of the parents is allowed at $13,000.00. I will leave the future medical expenses, cost of psychological counselling and loss of earning capacity, the latter of which I regard as a somewhat tenuous head of claim, for future consideration.

18. Damages for pain and suffering and loss of amenity will also be evaluated on receipt of Dr Otto Au's further report but for present purposes, I can indicate that the figure cannot be less than $300,000.00. I will make an interim award to cover the agreed figures and the minimal figure for general damages, totalling $330,600.00 to be paid within 28 days. The $30,600.00 is to be paid to his parents direct but covers all those agreed items, and $300,000 is to be paid into court.