HCPI 486/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 486 OF 2009

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BETWEEN

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J U D G M E N T

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THE ACTION

1.  The Plaintiff is a Nepalese living in Hong Kong.  He was born in Hong Kong in 1981 but returned to live in Nepal with his family when he was a few months old.  He was brought up and educated in Nepal up to secondary school level, before he returned to Hong Kong in 1998.  The Plaintiff is now a permanent resident of Hong Kong, and is married with 2 daughters.

2.  In this action, the Plaintiff claims against the Defendant for damages arising from an accident in which he suffered an injury to his left thumb.  The accident occurred on 24 April 2007, when the Plaintiff was working in a meat-cutting factory operated by the Defendant at Store 1, Block A, Cambridge Market, Sheung Shui (“the Site”). 

3.  At all material times, the Defendant operated a workshop at the Site to process pork meat.  The Plaintiff was employed by the Defendant as a meat-cutter.  His job was to separate the meat from the other parts (the fat, skin and the bones) of the pork.  To do so the Plaintiff had to use a large cleaver knife to slice the meat off the other parts of the pork.  The Plaintiff had been employed by the Defendant to do such work since early 2007 (the records show that he started work with the Defendant on 6^th February 2007).  At about 10 p.m. on 24 April 2007, while working at the Site the Plaintiff suffered an accident by cutting his left thumb. 

4.  It is not disputed that the accident occurred at the aforesaid time and place.  It is also not disputed that the Plaintiff was an employee of the Defendant, and was in the course of his employment at the time when the accident occurred.  The circumstances of the accident, however, are in dispute between the parties.

THE PLEADINGS

5.  As pleaded in paragraph 4 of his Statement of Claim, the Plaintiff claims that at the time of the accident, he was cutting meat whilst standing at a crowded table, and “[a]s he did so he slipped on the slippery floor causing him to cut his thumb with a knife”.

6.  The Plaintiff claims that the accident was caused by the breach of contract of employment, breach of common duty of care, negligence and breach of statutory duty by the Defendant.  Various particulars of breach have been pleaded.  I will not set them out in full.  Suffice to point out that they include allegations that the Defendant had (i) failed to provide proper training, supervision and instructions; (ii) allowed the floor of the Site to become slippery with animal bones, skin, fat, blood and water; (iii) failed to provide and maintain a safe and proper system of work; (iv) exposed the Plaintiff whilst he was working on the Site to a risk of injury of which the Defendant knew or ought to have known; and (v) failed to discharge the common duty of care as an occupier owed to the Plaintiff in breach of the Occupier’s Liability Ordinance, Cap. 314.

7.  As far as breach of statutory duty is concerned, the Plaintiff relies upon s.6 of the Occupational Safety and Health Ordinance (Cap. 509).  That section provides, in sub-section (1), that every employer must, so far as reasonably practicable, ensure the safety and health at work of all the employer’s employees.  Sub-section (2) further provides that “the cases in which an employer fails to comply with sub-section (1) include (but are not limited to) the following –

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

(b) ….

(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;

(d) as regards any workplace under the employers’ control-

(i) a failure to maintain the workplace in a condition that is, so far as reasonably practicable, safe and without risks to health;

(ii) a failure to provide or maintain means of access to and egress from the workplace that are, so far as reasonably practicable, safe, and without any such risks;

(e) a failure to provide or maintain a working environment for the employer’s employees that is, so far as reasonably practicable, safe and without risks to health.”

8.  By its Defence, the Defendant denies that the alleged accident was caused by any breach on its part of the contract of employment, or by breach of the other duties alleged by the Plaintiff.  It is further alleged by the Defendant that the accident was caused solely or contributed to by the negligence of the Plaintiff.  Again I will not set out in full the particulars of contributory negligence pleaded by the Defendant.  They include allegations that the Plaintiff had (i) failed to pay any or any sufficient heed to the condition of the Site; (ii) failed to keep his balance; (iii) failed to pay any or any adequate attention to the surrounding circumstances when working at the Site; (iv) handling the knife and/or cutting the meat in an unsafe manner; (v) failed to follow and/or comply with the instructions of the Defendant; and (vi) exposing himself to a risk of injury which he knew or ought to have known.

9.  I note, however, that in its Defence, the Defendant has not positively pleaded how the accident occurred.  The Plaintiff was simply put to strict proof of his allegations as to how the accident happened.

THE EVIDENCE

10.  At trial, the Plaintiff gave evidence. He also called a witness, Mr Gurung, Lekhman (“PW2”), who was a fellow worker working at the Site on the day of the accident.  Mr Lo Chun Lai (“Mr Lo”), who was an employee of the Defendant and worked as a supervisor at the Site on the day of the accident, gave evidence for the Defendant.  A joint medical report (“the Joint Report”) prepared and signed by Dr Chan Sai Keung (“Dr Chan”) and Dr Peter M.K. Tio (“Dr Tio”) was put before me.  The Joint Report was agreed between the parties and neither Dr Chan nor Dr Tio was called to give oral evidence.

The Plaintiff’s evidence

11.  The following is, in gist, the Plaintiff’s evidence regarding the accident:

(a)   the Plaintiff joined the Defendant to work as a meat-cutter in early 2007.  He had been a formwork worker before but was temporarily unemployed before he was employed by the Defendant;

(b)   the Plaintiff had no previous experience in meat-cutting.  He had received no training at all from the Defendant and when he started work with the Defendant, he simply followed what the other workers did by “imitating” their way in slicing the meat.  He was not taught how to use the knife, nor was he informed of “the hazards and dangers of this type of work”;

(c)   on the day of the accident, the Plaintiff had started work at about noon time and had worked through the whole afternoon and the evening to about 10 p.m. when the accident occurred.  He worked with his fellow workers (one of whom was PW2) around a large table on which the pork was placed.  He was wearing a pair of cotton gloves and a pair of what Defendant’s counsel (Mr Andrew Leung) called “anti-slip” boots at the time;

(d)   at the time of the accident, the Plaintiff was standing on one side of the large table slicing the meat.  He suddenly lost balance and slipped.  As a result, he lost control of the knife that he was holding in his right hand.  The knife slipped in his hand – “slanted on the side” (to use the Plaintiff’s own words”), and cut his left thumb;

(e)   as to why he suddenly lost balance, he told me that the floor was slippery as there was water on the floor, which was also littered with fat, meat and pork skin.  So he figured that he must have stepped on some “meat, skin or something” and slipped as a result.  He told me that he saw fat and meat on the floor after he slipped.  He could not, however, be sure whether he slipped to his right or to his left;

(f)   the floor was littered with fat, meat and pork skin because it was the practice of the Defendant’s workshop that after the meat was separated from the other parts of the pork, what was left of the pork would be swept underneath the working table onto the floor.  The fat, skin and other remaining parts of the pork would only be collected from the floor at the end of the day’s work and put into a plastic container.  This was the practice of the Defendant and had been so at the time when the Plaintiff started work with the Defendant (in early 2007);

(g)   during his cross-examination, it was suggested to the Plaintiff by Mr Leung that he was told to wear gloves made of stainless steel threads (“steel gloves”) at work. The Plaintiff denied this.  He told me that only cotton gloves were provided by the Defendant and he was never told to wear steel gloves;

(h)   after the accident the Defendant was sent to the North District Hospital.  He was examined by a doctor of the Accident and Emergency Department.  He was diagnosed as suffering from a 70% cut of extensor policis longus, and an emergency operation was performed on him to repair the tendon.  He was admitted to the Hospital and was discharged on 26^th April 2007.

PW2’s Evidence

12.  PW2 gave evidence in support of the Plaintiff’s claim that it was the practice of the Defendant that after the meat was removed from the pork, the fat, skin and the rest of the pork would be swept onto the floor.  He told me that no training was provided by the Defendant to the workers, including the Plaintiff.  Unlike the Plaintiff, however, PW2 had experience in meat-cutting before he joined the Defendant – he had worked in the market before for almost 10 years.  That was the reason why his salary was very much higher than that of the Plaintiff.

13.  PW2 told me that the Defendant had never provided steel gloves for the workers to wear, and denied the suggestion by Mr Leung that the workers could choose between wearing cotton gloves or steel gloves.

14.  Although he claimed to have witnessed the accident during his examination in chief, upon cross-examination, he admitted that he had not actually seen how the accident happened as he was concentrating on his own work.  He said, however, that the Plaintiff had told him afterwards how the accident happened.

Mr Lo’s Evidence

15.  In his witness statement, Mr Lo stated, inter alia, as follows:

“According to what I had learnt, the Plaintiff was assigned to work in the process of slicing pork meat with the pork knife. At the commencement of employment, the Defendant would give and teach each new comers (including the Plaintiff) basic safety training and the method of cutting including how to slicing pork meat, how to use the pork knife safely, ensure that the pork meat is placed on the working table and to wear gloves made of stain-steel threads when using the pork knife and the proper procedure to slice (the pork meat)…..”

16.  In his oral evidence in Court, Mr Lo said that it was he who taught the Plaintiff the proper procedure for slicing the meat. 

17.  On the question of the steel gloves, in his examination in chief Mr Lo claimed that it was not a must for workers to wear steel gloves.  He said that in fact it would not be possible for a meat-cutter to hold the pork properly if he was wearing steel gloves.  Accordingly, steel gloves were never used by workers except where a machine was used to cut the meat.  He told me that in his 10 years of experience, he had never seen anyone wearing steel gloves when they were slicing pork.  He however claimed that steel gloves were provided to the workers, who could choose between wearing “labour gloves” (which I understand to mean cotton gloves) and steel gloves.

18.  Mr Lo denied that it was the practice of the Defendant’s workshop to have the fat and pig skin (after they had been separated from the meat by the workers) swept onto the floor.  He said that instead of sweeping them on the floor, they would be put inside a basket.  The fat and skin had value as they could be sold by the Defendant.

19.  Mr Lo told me that the workers were required to wear anti-slip boots and the floor tiles had “veins” to avoid people slipping on it.  He however agreed in evidence that the anti-slip boots would not be effective in preventing slipping if a worker should step onto some pig fat lying on the floor.

20.  Mr Lo alleged that he personally witnessed the accident.  He said that at the time of the accident, the Plaintiff was not following proper procedure in slicing the meat.  Instead of slicing the meat on the table, he saw the Plaintiff holding the pork up with his left hand, away from the table, and attempted to slice the pork in mid-air with the cleaver knife in his right hand.  Mr Lo told me that it was quite impossible to cut a piece of pork while holding it up in mid-air, but said that he did not understand why the Plaintiff was doing that.

DISCUSSION ON LIABILITY

21.  It is clear from my short summary above that the evidence of the Plaintiff and the Defendant directly conflicts with each other.

22.  I have no hesitation in rejecting the Defendant’s case.  To start with, I do not believe Mr Lo’s evidence.  I have closely observed his demeanour while giving evidence, and I do not find him to be a credible witness.

23.  As pointed out above, Mr Lo claimed in his witness statement that steel gloves were provided to the workers to wear, and that when new workers joined the Defendant, they would be taught the proper procedure of work, to ensure, inter alia, that they would wear steel gloves when using the pork knife.  In addition to the witness statement, the Defendant produced to this Court some pictures of the steel gloves that were allegedly provided to the workers to wear.   It was suggested to the Plaintiff and PW2 during their cross-examination that they could choose between wearing the cotton gloves or the steel gloves.  Clearly the Defendant wanted to paint a picture to this Court that the Plaintiff only had himself to blame in not wearing the steel gloves supplied to him.  

24.  In his oral evidence Mr Lo admitted that it would have been impossible for a worker to hold the pork properly if he was wearing steel gloves.  For that reason, steel gloves were never used except when doing machine cutting.  Instead of saying that the Defendant would ensure that its workers would wear steel gloves, Mr Lo sought to water down the picture painted in his witness statement and claimed that the workers could choose between wearing labour gloves and steel gloves.

25.  It seems to me that Mr Lo could not have his cake and eat it.  If, as he claimed, it would be impossible for a worker to hold the pork properly wearing steel gloves, steel gloves were not a choice at all.  If, in his 10 years of experience, he had not seen anyone wearing steel gloves when slicing pork, it is difficult to see how it could realistically be said that the workers had a choice between wearing cotton gloves or steel gloves.  When I asked him to explain this, his answer was that his boss bought the steel gloves and they were simply placed there.

26.  Mr Lo claimed in his oral evidence that it was he himself who gave the Plaintiff the basic training referred to in his witness statement. If that was true, Mr Lo would have known, at the time when he made his witness statement, that what was purportedly stated there was highly misleading.   If he had never seen anyone wearing steel gloves when slicing pork, it is difficult to see how he could have honestly said that the training provided (by him) to the Plaintiff included making sure that he would wear steel gloves when using the pork knife.

27.  It seems to me that Mr Lo sought to water down the picture he painted in his witness statement when he realised that it might be difficult for him to explain how the Plaintiff could have suffered the injury as he did if he was wearing steel gloves at the time of the accident – and if he was not wearing them, how the Defendant could explain away its failure to take steps to ensure that its workers did wear these protective gloves while working.  Mr Lo sought to sail around these difficulties by seeking to put the ball in the workers’ court, i.e. by saying that it was a matter of choice for them.

28.  I do not accept Mr Lo’s explanation regarding the discrepancies between his witness statement and his evidence in court.  I can understand that in some cases, errors might be made in a witness statement which are explicable in terms of misunderstanding, oversight, or even outright carelessness.  Unfortunately this is not the case here. 

29.  I find that steel gloves were not provided by the Defendant to its workers.  As the Plaintiff said in his evidence, he had never seen such steel gloves.  In any event, even if such steel gloves were placed at the Site (as Mr Lo alleged), they were never intended by the Defendant for use by its workers.  

30.  I also reject Mr Lo’s account of how the accident happened.  As one can easily imagine (and Mr Lo confirmed this in his oral evidence), it is simply impossible for anyone to seek to cut a piece of meat while holding it in mid-air.  It is just a crazy thing for anyone to do. There was no reason why the Plaintiff would do such a thing unless he was going on a frolic.   Mr Lo did not suggest that the Plaintiff was playing at the time.  In these circumstances, unless the Plaintiff was out of his mind, there was neither reason nor sense why he should start cutting the pork this way.  I find Mr Lo’s evidence in this regard to be quite incredible, and I refuse to accept the same.

31.  Moreover, Mr Lo’s account of the accident was never pleaded by the Defendant in its Defence.  When confronted as to why he had failed to relate what he allegedly saw to the Defendant’s solicitors so that they could plead the same in the Defence, Mr Lo’s answer was that it was his first time attending a solicitors’ firm, that he was nervous and it did not occur to him to tell the Defendant’s solicitors what he saw.  I do not accept this as a satisfactory explanation.  Mr Lo was attending the Defendant’s solicitors to give instructions on the accident.  It is unbelievable that he would have failed to tell the Defendant’s solicitors what he personally saw if that was truly what he witnessed at time of the accident.  I reject Mr Lo’s evidence in this regard.

32.  Turning to the Plaintiff’s evidence, I find the Plaintiff to be a straightforward and honest witness, and where his evidence conflicts with that of Mr Lo, I have no hesitation in accepting the Plaintiff’s evidence as true. 

33.  Mr Leung seeks to criticise the Plaintiff’s credibility by pointing out that in a “Notification of Accident” form addressed to the Employees’ Compensation Division of the Labour Department (“the Form”) – a form which bears the signature of the Plaintiff – the cause of the accident was purportedly described as follows:

“When I cut the meat that time my knife was sleeply [sic] and cut my left thump [sic.]”

The point is made by Mr Leung that in so describing the cause of the accident, the Plaintiff did not state that he had lost his balance or had slipped on the floor.  Instead the cause of the accident was attributed to the slippery knife, which is not true.  This description, Mr Leung suggests, is different from the Plaintiff’s evidence and shows that the Plaintiff was not telling the truth.

34.  I do not accept Mr Leung’s submission.  When he was cross-examined on this point, the Plaintiff explained that because he could not speak and write English well, he had asked a friend to help him fill out the form.  The Plaintiff testified that he knew only some very basic and primitive English.  The Form was not completed by him but by his friend. Before his friend filled out the Form, he had told him about how the accident happened.  He only found out later that the friend did not write in the form that he had lost his balance and slipped on the floor, resulting in the loss of control of the knife.  I believe the Plaintiff’s evidence in this regard.  It would appear from the various spelling mistakes in the Form, particularly in the description of the accident, that the English standard of the friend was rather limited.  I do not think that the failure of the Plaintiff’s friend to describe the accident fully and accurately is sufficient in itself to undermine the Plaintiff’s credibility.  It certainly does not affect my overall impression of the Plaintiff as an honest witness.

35.  Mr Leung criticised the Plaintiff for not calling the friend (whose name was identified by the Plaintiff in Court) to give evidence.  I do not think that this is a very fair criticism.  The point taken by Mr Leung on the description of the accident in the Form was only taken by him during cross-examination.  Nothing was mentioned about this in the witness statements filed by the Defendant, or anything in its pleadings.  I do not think that the Plaintiff could be faulted for not arranging for the friend to give evidence.  In any event the point is more a credibility point than a substantive point – the friend did not actually witness the accident, and the Plaintiff had already given his answers in his oral evidence to the credibility questions asked of the Form.  I do not think that the Plaintiff could be faulted for deciding (no doubt upon advice) that it was not necessary for him to make urgent arrangement for his friend to be called as a witness, after the point had emerged during his cross-examination.

36.  Mr Leung submits that there was no reason why the Plaintiff would need the assistance of a friend to fill out the Form for him as he had learned English in Nepal starting from Grade 4.  There is also some evidence that the Plaintiff had attained a “Certificate in Standard Security & Property Management”, which was a certificate awarded to the Plaintiff on a course that he took (for the purpose of qualifying himself as a security guard).  The Plaintiff accepted that the course was conducted in English but there would always be a Nepalese translator present to translate the English materials to the students.  Although the test papers were in English, the tests were conducted in a rather informal way with the group of students sitting together and “consulting” with each other on the answers.  I accept the Plaintiff’s evidence in this regard and reject Mr Leung’s attack on the Plaintiff’s credibility as a witness.

37.  In particular I accept the Plaintiff’s evidence that it was the practice of the Defendant – a practice which was already in existence at the time when he joined the Defendant – to have the fat, skin and other parts of the pork that were separated from the meat, swept onto the floor.  Although these parts of the pork may have value and could be sold by the Defendant, I accept the Plaintiff’s evidence that they would only be picked up and placed in a container after the workers had finished the work for the day.  The Plaintiff’s evidence is in line with PW2’s evidence in this regard. Although I do not place weight on PW2’s evidence on how the accident happened – as I am satisfied that he did not actually witness the accident as he was concentrating on his own work at the time – I am nonetheless satisfied that he was telling me the truth about the aforesaid practice adopted by the Defendant’s workers in its workshop.

38.  Accordingly, I find that at the time of the accident, the floor was slippery and littered with fat, skin, and the like.  I find, on the balance of probabilities, that the accident happened because, while standing at the side of the working table cutting the meat, the Plaintiff changed his foothold and accidentally stepped on some fat or skin lying on the floor.  As he did so, he lost his balance and slipped.  Losing control of the knife that he was holding in his right hand, the knife slipped in his hand and he cut his left thumb accidentally.    As admitted by Mr Lo, the anti-slip boots would not be effective in preventing slipping if someone should step on some fat or skin lying on the floor.

39.  Mr Leung suggested that it was impossible for the Plaintiff to slip if he was standing on the floor with both feet.  Of course, the Plaintiff was not affixed to the floor as if he was a statue. Although he might be standing with both feet, he would naturally shift his weight, and change his foothold from time to time.  I do not see why it was impossible for the Plaintiff to slip if he happened to step on some fatty or slippery matter while changing his foothold or posture.

40.  I therefore find that slippery floor was the material cause of the accident.  As may be noted above, as part of his claim against the Defendant for breach of the contract of employment and breach of duties, the Plaintiff also relies upon the lack of training as supporting his claim.  While I accept the Plaintiff’s and PW2’s evidence that the Defendant did not actually provide the Plaintiff with any training (on how to cut the meat) at all when he started work (and reject Mr Lo’s evidence to the contrary), I do not think that the lack of training in that regard was a material cause of the accident.  In light of my finding on how the accident happened, the question of lack of training (on how to cut the meat) is quite irrelevant.  What may however be relevant is the lack of any training or instructions given by the Defendant to its workers on keeping a safe system of work at the Site – particularly in regard to keeping the floor clean and not littering the same with fat, skin or other matters removed from the pork. 

41.  It is trite law that at common law, an employer has to take reasonable care for his employees’ safety.  The duty is not absolute but the standard of care is a high one as personal safety is at stake (see Cathay Pacific Airways Ltd v Wong Sau Lai [2006] 2 HKLRD 586, per Bokhary PJ at 589J to 590I).  The duty is a single duty but the scope of that duty “extends, inter alia, to the provision of a safe place of work and to exercise an effective supervision over his employee.  Such duty of an employer is personal and non-delegable and therefore he could not expect his employee to discharge his duty of care for him” (per Suffiad J in Tsang Chung Wan v Li Ming[1998] 2 HKLRD 354).

42.  In the present case, by allowing its workers to adopt or follow the practice of sweeping the fat, skin and other parts of the pork onto the floor, thereby making the floor slippery, the Defendant had, in my judgment, failed to take reasonable care of the safety of the Plaintiff. More particularly, the Defendant had failed to provide him with a safe place of work, and had failed to maintain a system of work and working environment whereby the Plaintiff could work safely without suffering the clearly foreseeable risk of slipping on the slippery floor.

43.  In this regard, it is important to emphasize that the duty on the part of the employer is personal to him and it does not lie in his mouth to say that the employee could equally have foreseen the risks associated with the unsafe system of work, and could have designed for themselves a safe system of work.  As Suffiad J observed in Tsang Chung Wan (supra), the employer could not expect his employee to discharge his duty of care for him.  I would gratefully adopt the words of Lord Oaksey in his judgment in General Cleaning Contractors Ltd. v. Christmas[1953] AC 180 at 189-190, as follows:

“In my opinion, it is the duty of an employer to give such general safety instructions as a reasonably careful employer who has considered the problem presented by the work would give to his workers. It is, I think well known to employers…. That their workpeople are very frequently, if not habitually, careless about the risks which their work may involve. It is, in my opinion, for that very reason that the common law demands that employers should take reasonable care to lay down a reasonably safe system of work. Employers are not exempted from this duty by the fact that their men are experienced and might, if they were in the position of an employer, be able to lay down a reasonably safe system of work themselves. Workmen are not in the position of employers. Their duties are not performed in the calm atmosphere of a board room with the advice of experts…”

44.  In my judgment, the duty rests with the Defendant to take steps to ensure that the floor at the Site was safe and not slippery.  It failed to do so by allowing its workers to follow the practice mentioned above.  It was reasonably foreseeable that the adoption of such a practice would give rise to risks of safety, and the Defendant should have taken steps to ensure that its workers would not litter the floor with fat, skin and other slippery matters.   A strict enforcement of a work rule that workers must not sweep anything under the table or onto the floor would have been necessary for the Defendant to discharge its duties in this regard.  Such enforcement was, in my view, reasonably practicable.  What was required was proper instructions and training to the workers, and effective supervision to ensure compliance by the workers.  By failing to take proper steps in these regards, the Defendant had failed in its common law duty, its common duty of care, its duty under s.6(1) of the Occupational Safety and Health Ordinance, as well as the implied term of the contract of employment to take reasonable care of the safety of its employee.

45.  For reasons mentioned above, I find the Defendant liable to the Plaintiff.

CONTRIBUTORY NEGLIGENCE

46.  Mr Leung submits that if I should find the Defendant liable to the Plaintiff, I should also find contributory negligence on the part of the Defendant.  He submits that “the Plaintiff was contributorily negligent because he knew that the floor was slippery before the accident, yet he did not take any measures to protect himself from slipping on the slippery floor.” In paragraphs 7 and 8 of his supplementary closing submission, he put his arguments in the following way:

“7. It is submitted that the Plaintiff was contributory negligent because he failed to:

a. keep his legs still and stable whilst he was cutting the meat;

b. make sure that he was not standing on any obvious pieces of fat before he cut the meat.

8. Had the Plaintiff felt the need to shift his weight or alter his standing position the Plaintiff should have done so in between the action of cutting meat, and not during the action. It is submitted that even if the floor was not slippery and the Plaintiff chose to shift his weight during the action of cutting meat, the Plaintiff would still be carelessly putting himself at an increased risk of cutting himself. It is submitted that it must be common sense for one to keep their legs still and stable whilst using a meat cleaver to chop or slice meat.”(Mr Leung’s emphases included)

47.  I cannot help detecting a certain lack of reality in these submissions.  Mr Leung’s submissions rest on the unspoken assumption that every time when the Plaintiff changed his foothold, or altered his standing position, he should have paused to think (i.e. to think about the proper way of doing it – and one might take Mr Leung’s submissions a step further – to look down on the floor to make sure that he would not step on some fat or skin when changing his posture).  This is counsel for perfection and in my judgment, quite unreal.  In this regard, I remind myself of the words of Lawrence J inFlower v Ebbw Vale Steel, Iron and Coal Co. Ltd [1934] 2 KB 132, at 139-140:

“I think of course that in considering whether an ordinary prudent workman would have taken more care than the injured man, the tribunal of fact has to take into account all the circumstances of work in a factory, and that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that the plaintiff ought to be held guilty of contributory negligence.”

48.  In the case of Casewell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, Lord Wright held at p.178-179:

“…. What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre-occupation in what he is actually doing at the cost perhaps of some inattention to his own safety. In Dew v. United British Steamship Co., I question if this point of view was fully realized by Scrutton L.J., when he dissented from the view of MacKinnon J., the trial judge. The latter was of opinion, as appears from what he said to the jury, that the real effective cause of the accident was the breach of the statutory regulation, and that the man's act in slipping was not the proximate cause of the accident. Scrutton L.J. held that as the man slipped when going about his duty and thus fell into the open unfenced hatch, the slipping was negligence because he would not have slipped if he had been more careful and was a co-operating cause, and hence that the man was disentitled to recover. So far as I follow the facts, I should have thought that they did not show negligence on the part of the man even if he might have walked more warily, and further that slipping was not the proximate cause of the injury. The negligence to be contributory must also be, in Lord Campbell's words in Senior v. Ward, negligence "materially contributing" to the injury. The rules of contributory negligence have been mainly developed in connection with road accidents, but at least since Davies v. Mann, the law in discussing contributory negligence in such cases has disregarded as not materially contributing causes some acts of the plaintiff which might be regarded as negligence in a sense, and treated them as of subsidiary moment in ascertaining the causation of the injury and has fixed attention on what was judged to be the proximate or effective cause. Hence the question was stated as it was in Swadling v. Cooper to be what was the substantial cause. Contributory negligence involves two elements, negligence and contributing negligence. The policy of the statutory protection would be nullified if a workman were held debarred from recovering because he was guilty of some carelessness or inattention to his own safety, which though trivial in itself threw him into the danger consequent on the breach by his employer of the statutory duty.”

49.  In Mak Woon King & Another v Wong Chiu [2000] 3 HKC 350, Ribeiro JA (as he then was) held at 356I to 357B:

“It is therefore clear that where a breach of statutory duty by an employer is a substantial cause of injury to an employee, the fact that the employee contributed casually to the accident by his own momentary inadvertence or lack of care, if in the context of a repetitive, distracting or fatiguing work environment, may well be regarded as an ‘excusable lapse’ and not as contributory negligence at all: per Lord Reid inStavely Iron Chemical Co. Ltd. v Jones [1956] AC 627 at p. 642.” (emphasis added)

50.  In the present case, the Plaintiff had been working from about noon time to about 10 p.m. in the evening standing by the side of the working table slicing meat.  To argue that the Plaintiff was somehow negligent in failing to ensure that he only altered his standing position “in between” the action of cutting meat is, as I said, counsel for perfection.  If the Plaintiff had paused to think before shifting his weight, or changing his posture, it might well be that he would realize that it would be safer for him to stop cutting, or even to check the floor before taking his new foothold.  But a man who had been standing for almost 10 hours cutting meat, basically repeating the same operation constantly and almost mechanically, would not pause to think when changing his standing position.  It is simply not reasonable to expect that he would pause to consider his actions.  He could not be expected to ask himself this question – “should I stop cutting now because I want to shift my weight?” – everytime he moved his foothold.   These actions such as shifting weight, changing posture etc. were actions that came naturally to the standing workman who had been working repetitively for long hours.  In my judgment, such “momentary inattention” (if one may call it such) is not negligence at all.  

51.  Even if I am wrong, I am of the firm view that the proximate cause of the accident is the negligence of the Defendant.  As has been pointed out by Lord Wright, it is not that every carelessness or inattention to his own safety amounts to contributory negligence on the workman’s part.  Carelessness and inattention that was not the proximate cause of the accident is to be ignored.  I am of the view that the Plaintiff is not guilty of any contributory negligence, and I reject Mr Leung’s submission in this regard.

52.  Mr Leung has referred me to a host of cases on contributory negligence.  It is not necessary for me to discuss those cases in detail.  Suffice for me to say that the facts in those cases are very different from the present case.  On questions such as contributory negligence, where the Court is required to look at all the circumstances of each case, cases involving different facts generally provide little assistance.

QUANTUM

53.  The Plaintiff was aged 25 at the time of the accident.

54.  The cut resulted in a 3 cm laceration of the dorsum of the Plaintiff’s left thumb.  There was a 70% cut extensor pollicis longus and tendon repair was performed by the North District Hospital.  He was discharged after 3 days in hospital and received physiotherapy and occupational therapy for about 4 & 1/2 months.  Government doctors had granted the Plaintiff sick leave until 11 November 2007.  He was assessed by the Employees’ Compensation (Ordinary Assessment) Board for loss of earning capacity at 2%. According to the Joint Report, both Dr Chan and Dr Tio were of the view that the Plaintiff should be able to return to his pre-accident job as a butcher or general construction site worker, but with a reduction in efficiency. The holding power of his left hand has been reduced.

Pain, suffering and loss of amenities (“PSLA”)

55.  This has been agreed between the parties at $120,000.

Loss of Earnings

(a) Pre-trial loss of earnings

56.  In the Joint Report, Dr Chan is of the opinion that a reasonable sick leave period should be about 6 months i.e. up to 22 October 2007.  Dr Tio, on the other hand, expresses the opinion that the Plaintiff should only be granted a sick leave period of 4 months.  As pointed out above, Government doctors had granted the Plaintiff sick leave until 11^th November 2007.

57.  The opinions expressed by Dr Chan and Dr Tio on the question of sick leave could only be based on their medical examination of the Plaintiff, which took place in February 2009, some 22 months after the accident.  In my view, questions of sick leave are more reliably judged by the treating doctors, than by examining doctors who conducted their examination a long time after the event.  I therefore take the view that the reasonable period of sick leave in this case is that granted by Government doctors, namely up to 11^th November 2007.  

58.  I also accept the submission of the Plaintiff’s Counsel (Mr Chase Pun) that the Plaintiff should be allowed his loss of income during the sick leave period plus a reasonable period thereafter to allow time to the Plaintiff to look for a job.  In this connection, I would allow a further period of 3 months after the expiry of the sick leave period, following the approach of Wong Yun San v Cheung Yue trading as Radio Engineering Co., DCPI 1909/2007, 21^st July 2008, unreported.

59.  From the date of the accident (24^th April 2007) up to 11^th February 2008, there was a period of 9 & 1/2 months.  

60.  It is not disputed that while working for the Defendant, the Plaintiff earned about $7,500 per month.  Hence the Plaintiff’s loss of income during the period up to 11^th February 2008, including loss of MPF (5% on income) is $7,500 x 9.5 x 105% = 74,812.50.

61.  For the period between 12^th February 2008 up to the date of the trial, there is a period of 29 months.

62.  As pointed out above, according to the Joint Report, Dr Chan and Dr Tio were of the opinion that “the Plaintiff should be able to return to his pre-accident job in the butcher shop or general construction site worker, but with reduction in efficiency”.  Both doctors however expressly mentioned that “[t]he holding power of his assisting left hand was reduced”. As a matter of fact, however, the Plaintiff only started working as a part-time cleaner (cleaning public railings) in late October 2009 and earned about $6,000 per month.  This is despite the fact that the Defendant had offered to take the Plaintiff back to its employment as a meat cutter.

63.  In his evidence, the Plaintiff explained that he could not return to the Defendant’s employment because as a meat-cutter, he would need to use his left hand to hold the pork when cutting, and with the reduction of the holding power of his left hand, he was afraid that he would not be able to work properly as a meat cutter.  In my view, the Plaintiff’s concern is very real, for unless the Plaintiff could hold the meat steadily, cutting meat is a dangerous job. The assisting left hand is important for the cutting operation, and I find that it is reasonable for the Plaintiff not to return to his employment with the Defendant.  Added to this is of course the fact that the job as a meat cutter was never intended by the Plaintiff to be a permanent job.  The Plaintiff had been a formworker and construction worker before – it was only because he was temporarily unemployed that he joined the Defendant in February 2007.  Meat-cutting was not the Plaintiff’s usual employment.

64.  In order to return to his former employment (as a panel worker or formwork worker), he would need to use both of his hands to lift heavy objects and that was something he was not able to do because of the reduction of the gripping power of his left hand, and because of the pain at the base of his left thumb which continued to plague him.  The Plaintiff also gave evidence to the effect that “unemployment was very high in the Nepalese community in Hong Kong” and he had great difficulty finding a suitable job after the accident.  He had tried to get work as a security guard (which was why he registered himself for the course on security and property management mentioned above).  It was only in late October 2009 that he succeeded in finding a job as a part-time cleaner with a company called Shun Yuen Construction Co. Ltd.

65.  I accept the evidence of the Plaintiff and would hold that despite the doctors’ opinion in the Joint Report, the effect of the reduction in efficiency of his left hand (and the residual pain that he is still suffering) is such that, in reality, he will experience difficulty in returning to his previous employments as a panel or formwork worker.  It is also not practically possible for him to do the work of a meat-cutter for reasons mentioned above.   I note that in the case Khan Amar v Cheung Ying Construction Engineering Ltd & Another, HCPI 231/2005, Reyes J dealt with a similar situation (i.e. the doctor was of the view that the plaintiff in that case might return to his pre-accident occupation, but with a reduction in efficiency) and reached a similar conclusion on the facts of that case (the judgment of Reyes J. was subsequently confirmed by the Court of Appeal in CACV 153/2006, 5^th June 2007).  Although of course each case must depend on its own facts, I am satisfied that in the present case the Plaintiff will indeed suffer a disadvantage in finding work because of the reduced efficiency of his left thumb.  He has and will, in reality, suffer a loss of earnings as a result.

66.  As I pointed out above, although the Plaintiff’s earnings during his employment with the Defendant was $7,500 per month only, that was not his usual employment.  The parties have agreed that, if I should take the view that the Plaintiff is entitled to recover damages for the loss of earnings after the expiry of a reasonable sick leave period (and a reasonable time for him to look for employment), the figure of $9,500 should be taken as his pre-accident earnings for the purpose of calculating such loss of earnings.

67.  On the basis that the Plaintiff will be able to find and engage in work as a cleaning worker earning $6,000 per month, the Plaintiff’s loss of earning for the period from 12^th February 2008 to trial (including loss of MPF) is: ($9,500 - $6,000) x 29 x 105% = $106,575.00.

68.  Total pre-trial loss of earnings = $74,812.50 + $106,575.00 = $181,387.50.

(b) Future loss of earnings

69.  A multiplier of 15 has been agreed (subject to the Defendant’s primary contention that no award should be made under this head) between the parties for the purpose of calculating the future loss of earnings.

70.  I have already given my reasons above as to why I think that the Plaintiff will in fact suffer a loss of earnings.  I would allow recovery under this head (including loss of MPF contribution) for the sum of $661,500, calculated as follows:

($9,500 - $6,000) x 12 x 15 x 105% = $661,500

Loss of Earning Capacity

71.  The Plaintiff’s claim for $50,000 is agreed between the parties.

Miscellaneous Expenses

72.  Again, this has been agreed between the parties at $4,792.

Deduction on account of Employees’ Compensation

73.  There is no dispute that the amount of $72,352, being the employees’ compensation already paid to the Plaintiff, should be deducted from the amount of damages.

Total Amount Recoverable

74.  The total amount recoverable by the Plaintiff is as follows:

(1)	PSLA	$120,000.00
(2)	Pre-trial loss of earnings (including MPF)	$181,387.50
(3)	Future loss of earnings (including MPF)	$661,500.00
(4)	Loss of earning capacity	$50,000.00
(5)	Other special damages	$4,792.00
(6)	Deduction on account of employees’ compensation	($72,352.00)
	Total:	$945,327.50

ORDER

75.  I order that the Defendant do pay to the Plaintiff the sum of $945,327.50 by way of damages.  I also order that interest be payable by the Defendant:

(a) on all pre-trial special damages, at half of the judgment rate, to run from the date of the accident; and

(b) on general damages, namely, PSLA, at 2% per annum, to run from the date of service of the writ.

COSTS

76.  I will make an order nisi that the costs of the action be paid by the Defendant to the Plaintiff, to be taxed if not agreed. The Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.