YEUNG SZE HOI v. NEW TRADE GOOD FOOD CENTRE LTD

HCPI 568 /2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 568 OF 2004

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J U D G M E N T

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The plaintiff’s claim

1. The plaintiff’s claim is for damages arising out of an incident which occurred on 20 March 2002.  At the time the plaintiff was employed as a junior cook in the defendant’s canteen.  The canteen was on the ground floor while the storeroom for placing food was situated on the 8^th floor.  One of the plaintiff’s duties as the junior cook was to deliver every day food items stored on the 8^th floor to the canteen for the chef and his two staff to prepare and cook the food for sale on the following day.  The plaintiff was employed by the defendant on 16 October 2001.  On the day of the incident, the plaintiff had gone to the storeroom with a trolley, intending to take therefrom rice, frozen meat, canned food, drinks and seasoning sauces.  When he arrived at the storeroom, he found that the goods, food and tools were placed in a very disorderly manner in the storeroom.  When he intended to move a box of preserved vegetables to reach boxes of bamboo shoot, he felt a snap sound on the left side of his body and his left side became weak and he fell onto the floor on his left side.

Matters not in dispute

2. The following matters were common to both parties :

(a)	when the plaintiff joined the defendant, he was not asked if he had received training in safety matters;
(b)	he was not told what precautions he should take when moving items of food;
(c)	he was not given any material on safe postures when lifting things from the floor;
(d)	the defendant never issued to the staff any written instructions or safety instructions to be complied with when transporting items of food from the storeroom to the canteen;
(e)	the defendant only verbally instructed the staff to work carefully and that if the food to be carried was too heavy for one trip, it could be split into two trips; alternatively, other members of the staff could be approached for help in the transportation; and
(f)	the plaintiff’s superior, Mr Tsui Yiu Chung (“Tsui”) was never instructed by the defendant to give training or instructions to the plaintiff when the latter joined.  Consequently, Tsui never gave the plaintiff any instructions or training on how he could safely do his duties.

The defence

3. The defence relied upon was that the plaintiff has failed to prove, as it was pleaded and as it was opened by the plaintiff’s counsel, that the injury caused to the plaintiff on the day of the incident was the result of cumulative strain on his lower back.  It was said that the plaintiff’s case was that in the discharge of his daily duty, the plaintiff was subjected to working conditions which were so physically demanding and stressful that he eventually injured his back on the day in question.  In his witness statement, the plaintiff had said that he was required to do the transportation work daily and he had to carry at least 80 catties of goods from the storeroom to the canteen.

The dispute between the parties

4. The plaintiff gave evidence that one month after he joined the defendant, he told his boss Mr Fung Yu Tak that he had back pain.  He had been moving things in the storeroom and while he was doing that, he felt pain on his back.  After 30 minutes, he felt pain when walking so he went to Mr Fung and told him that he wanted to leave earlier to see a doctor.  He also told Mr Fung that he previously suffered a back injury.  As a result of that conversation, Mr Fung issued a directive that the plaintiff was not to do transportation work.  The defence case was that the directive was never lifted; the plaintiff and his witness Tsui both said in evidence that the directive was lifted after one week and thereafter the plaintiff did the transportation work every day until the day of the accident.

5. The defence relied on the evidence of Mr and Mrs Fung who were both called to give evidence.  They both confirmed that the directive was issued by Mr Fung and was never lifted.  Mrs Fung was the person who kept the key to the storeroom and any person who wanted to go up to the storeroom had to ask her for the key.  On the day of the accident, Mr Fung had left the premises.  Mrs Fung gave evidence that on that day, the plaintiff came to ask her for the key to the storeroom.  She did not give it to him and said that her husband had instructed that he was not to be given the key.  Tsui then came and said the things the plaintiff was to get were light and nothing would happen.  She did not relent.  Tsui then said : “I can guarantee that nothing will happen, let him go.  He is going to take things which are very light, like 1 to 2 cans of food.  How can that hurt the back? Yeung knows where the things are placed.”  I find the abovementioned evidence by Mrs Fung rather contrived.  If any person should be concerned about the efficient running of the business, it would have been the boss (Mrs Fung) not one of the junior chefs.  I find it difficult to accept that an employee would guarantee to his employer that nothing would happen to a fellow-employee. 

6. One of the matters relied upon by the defence is the submission that Mrs Fung’s evidence was supported in certain respects by that of Tsui.  Tsui in his witness statement simply said that on the day in question, he asked the plaintiff to go to the storeroom and use a trolley to bring rice, frozen meat, canned food, drinks and seasoning from the storeroom to the canteen.  After a while, he saw the plaintiff coming back to the canteen and he looked very painful.  The plaintiff told him he had sprained his back.  In his evidence-in-chief in Court, Tsui said that he had a discussion with Mrs Fung on the day in question and it was about collecting several cans.  He said he told Mrs Fung to give the key to the plaintiff then he went back to the kitchen to work.  However, in cross-examination, he agreed to the following propositions put to him :

(1)	after Mrs Fung refused to give plaintiff the key, the plaintiff came to Tsui and Tsui went to Mrs Fung to ask her to permit the plaintiff to go to the storeroom to get a few cans of food;
(2)	Tsui told Mrs Fung the items were not heavy at all; and
(3)	Mrs Fung handed over the key only after Tsui and the plaintiff assured her the plaintiff would only take a few items.

7. It is said that the evidence mentioned above supported Mrs Fung’s evidence that Tsui guaranteed that nothing would happen and that the plaintiff was just going to take things which were very light, like 1 to 2 cans of food.  When Tsui was re-examined, he mentioned that he had a stroke four months before coming to Court and that his memory was now poorer and he reiterated his evidence-in-chief that he only told Mrs Fung to give the key to the plaintiff, then he went back to the kitchen to work.  He denied that Mrs Fung had told him that the plaintiff could not go (to the storeroom) and he (Tsui) had to ask someone else.  I find that because of the stroke Tsui suffered, his memory was impaired and whatever conversation he might have had with Mrs Fung on the day in question was not because by then the directive by Mr Fung had not been lifted.  I find that as the plaintiff and Tsui testified, the directive was lifted after one week of its issuance.  On a balance of probabilities, I prefer the evidence of the plaintiff and Tsui to that of Mr and Mrs Fung.

Liability

8. It is patently clear that the defendant neither instructed the plaintiff on how to do the work safely nor had in place a safe system of work which would have prevented the plaintiff from being injured while working at the defendant’s canteen.  The verbal instruction by the defendant that if the load was too heavy, the plaintiff could have asked for the assistance of other workers was no more than just an instruction as in fact, as the evidence showed, all the other workers were very busy with their own work and no one was ever free to render assistance.

9. In General Cleaning Contractors Ltd v. Christmas [1953] AC 180 Lord Oaksey said at page 189 :

“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 workmen.”

Lord Oaksey also said that it was well known to employers that workpeople are very frequently careless about the risks which their work may involve.  At page 189 he continued :

“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 Boardroom with the advice of experts.  They have to make their decisions on narrow window sills and other places of danger and in circumstances in which the dangers are obscured by repetition.”

At page 194, Lord Reid said :

“Where a practice of ignoring an obvious danger has grown up I do not think that it is reasonable to expect an individual workman to take the initiative in devising and using precautions.  It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do and to supply any implements that may be required such as, in this case, wedges or objects to be put on the window sill to prevent the window from closing.  No doubt he cannot be certain that his men will do as they are told when they are working alone.  But if he does all that is reasonable to ensure that his safety system is operated he will have done what he is bound to do.”

10. In Lai Chi Pon v. Toto Steel & Iron Works Ltd & Ors [1997] 2 HKC 195, Cheung J following Wilsons and Clyde Coal Co. v. English [1938] AC 57 and General Cleaning Contractors Ltd v. Christmas (supra) held that an employer was required to provide, inter alia, a safe system of work, effective supervision and a safe place of work.  Cheung J also held that an employer could not expect his workmen to lay down and operate a system for themselves.  Nor could he rely on the skills and experience of his workmen in discharging his duty of care.

11. I find that the defendant failed to provide a safe system of work and failed to exercise effective supervision over the plaintiff.  As the Court of Appeal in Law Wing Shing v. Chung Fat Mechanical Works Co. and Another [1988] 1 HKLR 435 said many cases indicated a principle that a workman should not be judged too harshly for momentary inattention to his own safety where the employer is basically at fault.  I therefore find that the defendant qua employer was in breach of its common law duty and its duty qua occupier.

Contributory negligence

12. It is submitted that the plaintiff was the ‘author of his own misfortune’ and his claim must be dismissed in any case.  Alternatively, in the event that the Court finds in favour of the plaintiff on liability, it is submitted that in the circumstances there should be a very high degree of contributory negligence, having regard to the degree of blameworthiness on the part of the plaintiff.  It is submitted that contributory negligence should at least be in the region of 75%.  In the light of my findings of fact stated above and in the light of my finding that the defendant failed to provide a safe system of work and failed to exercise effective supervision over the plaintiff, I am satisfied that the plaintiff was not guilty of any contributory negligence because the defendant, as I found above, did not provide him with a safe system of work thus requiring him to improvise to render the work safe.  In Machray v. Stewarts and Lloyds Ltd [1964] 3 AER 716, 721E McNair J stated :

“... here I am dealing with a man who is skilled in this kind of operation, a man who, by his own admission, knows the right way to do the work and who would not expect in this rigging operation to be told by his charge-hand how to do the work.  Nevertheless, he does use a method which, as I put to him, must have been plainly a method which, if not palpably or obviously dangerous, was quite obviously less safe than the method which he would have preferred to use.  On the other hand, when I find a workman, an employed man, adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer’s business, and I find that he has been prevented from doing the work in the way in which he would have preferred to do by the employer’s breach in not providing him with the proper tackle, I am very slow to put any blame on him and I do not feel that, although the dangers of what I have called the make-shift arrangement become very apparent ... they were or ought to have been so apparent to the skilled rigger at the time as to necessitate that I should visit him with any responsibility for the accident. .… accordingly, in my judgment, the Plaintiff has succeeded in establishing a 100% liability.”

Quantum

13. The plaintiff’s medical condition was not challenged by the defence.  He was examined on 5 January 2004 jointly by Dr David Cheng instructed for the plaintiff and by Dr Lam Kwong Chin instructed for the defence.  Their diagnosis was a sprained back and complicated by a prolapsed disc at L3/4 with displacement of L4 root on the left side.  Dr Cheng was of the opinion that the plaintiff was a normal person at the time of the accident and that the accident should have been solely responsible for the injuries.  Dr Lam noted that as previous doctors had reported that the plaintiff had on and off mild back pain, the accident could be viewed as an exacerbation of a pre-existing back pain.  Dr Lam’s opinion was that in general, the lifting of 20 catties of weight seldom caused significant back injury in a young man.  I accept Dr Cheng’s opinion which is consistent with the evidence of the plaintiff that up to the time of the accident, he was not in any way affected by the incident in April 2000 when he sprained his back and was granted 26 days’ sick leave.

14. The plaintiff was treated in January 2003 for poor sleep and he complained of persistent back pain, low mood, increased irritability, decreased energy level and poor volition.  He also had negative cognition like a sense of worthlessness and helplessness and developed  fleeting suicidal ideas.  Dr Leung Tak Yu of Alice Ho Miu Ling Nethersole Hospital Psychiatric Out-patient Clinic was of the opinion that the plaintiff was suffering from adjustment disorder with prolonged depressive reaction.  The plaintiff had expressed psychological stress and insomnia to the doctor in July 2002.

15. At the joint examination on 5 January 2004, the plaintiff complained of on and off low back pain, some weakness of the back and pain on bending and lifting of heavy objects.  At times, there was also severe left leg pain.  At this examination, the two doctors recorded that Yeung recalled that he had a back injury in 1998 or 1999 when he was treated at Kwong Wah Hospital for about a month.  They also recorded that he sprained his back while carrying rice on 24 April 2000 and had treatment at the same hospital.  The plaintiff denied that he had a back injury in 1998 or 1999 and said that he only received treatment once at Kwong Wah Hospital for back injury.  The note made by the examining doctor on 21 March 2002, in relation to the 2000 incident, was “minor pain on and off since then”.  I am satisfied that there was only one incident prior to the accident, the subject matter of this action, and that was the one in April 2000.

16. The joint opinion of the two doctors was that the plaintiff would be able to resume his pre-accident occupation of a cook.  They were of the view that if the work should involve frequent bending and lifting of heavy objects, the back pain might recur.  Dr Cheng was of the opinion that the sick leave granted by the Medical Board, namely from 20 March 2002 to 14 May 2003 was reasonable, while Dr Lam was of the view that the leave should have been stopped by the time the plaintiff had finished the physiotherapy treatment and surgery was considered unnecessary after the MRI scan, namely up to November 2002.

17. The plaintiff’s sick leave expired on 14 May 2003.  The hospital notes dated 12 May 2003 recorded that on that day there was still back pain which increased on standing, sitting and lying for limited duration, and there was radiation to the left lower leg.  On 9 June 2003 there was still back pain with minimal improvement.  On 29 June 2003 the plaintiff was employed in a restaurant earning $7,000 per month plus a bonus of $500.  He worked there till 31 July 2003.  The pain recurred and on 20 July 2003 the plaintiff was admitted into a hospital for severe back pain and was discharged the next day.  Between 1 August till late November 2003, the plaintiff was unemployed.  On 30 November 2003, he rejoined the same restaurant but earned less than on the previous occasion, namely $6,800 per month.  He worked there till the end of April 2004.  From 1 May 2004 till mid-September 2004, he worked in another restaurant, earning $8,000 per month.  As from 20 October 2004, the plaintiff has been working in another restaurant, also earning $8,000 per month.

Effect of pre-existing condition on the assessment of damages

18. The defence seeks a discount of 40% of the damages to be awarded because of the plaintiff’s previous injury.  Woolley DJ in Chan Kam Hoi v. Dragages et Travaux Publics [1998] 4 HKC 523 at 527 said :

“When considering the effect of a pre-existing condition on an award of damages there are three possible scenarios.  The first is where the Plaintiff was almost certain to have gone through life unaffected by the condition.  The second is where there is a strong possibility that some other event, or natural progression of the condition, would have brought about the Plaintiff’s present state.  The third is where this would certainly have occurred at some stage in any event.  In the first, the Defendant would be liable for all damage caused.  In the second it would be necessary to assess the degree of the possibility in deciding what reduction is appropriate, as in assessing the effect of other vicissitudes of life.  In the third, clearly an allowance has to be made, the extent of which depends on the evidence as to when the precipitating event would have occurred.”

The Court of Appeal agreed with this approach.  The plaintiff in his evidence said that he had recovered from the April 2000 injury and because of that, the injury did not prevent him from resuming his previous work.  He also said that since the first accident, he did not take sick leave or seek medical treatment for it.  I am satisfied that the evidence did not show that the previous condition or a natural progression of that condition, brought about the plaintiff’s present state.  In the circumstances, the damages to be assessed should not be discounted at all.  Even the defence’s doctor, Dr Lam, only said that the subject accident could be viewed as an exacerbation of a pre-existing back pain, and not that without the latest accident, the pre-existing back condition would have become worse in any event.

Pain suffered and loss of amenities (PSLA)

19. In Lai Ching v. Wong Chiu Kwai [1999] 1 HKLRD A12, the plaintiff was diagnosed as suffering from a prolapsed disc at L4-5 with compression of the nerve root.  He was discharged from hospital and received out-patient physiotherapy for ten months for pain in the lower back and right leg.  He then had an operation to relieve pain but five months later the pain recurred.  Three and a half years after the accident he still complained of low back pain after prolonged sitting, pain in the right leg aggravated by walking or prolonged sitting, and weakness of the right foot and toes.  The condition was asymptomatic prior to the accident.  The evidence at trial was that the plaintiff could still work as a craftsman without having to lift heavy objects provided he could get up at times for short periods.  In his judgment of June 1998 Suffiad J said that the range of recent awards relating to disc prolapse back injuries due to previous degenerative changes which were asymptomatic varied between $210,000 and $300,000.  The judge awarded $300,000.

20. Dr Cheng estimates a 10% loss of earning capacity while Dr Lam opines that it should be 5%.  In Lai Ching (supra), the plaintiff’s loss of earning capacity was in the region of 35% and no further surgical treatment was likely to improve his condition.  Under this head, therefore, I award the sum of $250,000.

Pre-trial loss of earnings

21. The defence submits that the plaintiff’s condition had become static and sick leave should have ceased by November 2002, namely eight months after the accident.  It is submitted that this is largely consistent with the opinion of the doctors at Prince of Wales Hospital, for example, on 17 February 2003, the doctor examining the plaintiff said his condition was static since December 2002 and he was fit for medical assessment for orthopaedic point of view.  However, the doctor on that occasion granted sick leave from that day till 12 May 2003.  It is submitted that the plaintiff should have been able to resume work on the expiry of his sick leave on 20 January 2003.

22. On behalf of the plaintiff, it is submitted that Dr Cheng’s opinion on the reasonableness of the sick leave granted supports the leave granted by the treating doctors.  As can be seen from the hospital notes dated 12 May 2003, on that day the plaintiff still had back pain which increased on standing, sitting and lying for limited duration and the notes of 9 June 2003 recorded that on that day the plaintiff still had back pain.  It is submitted that the opinion of the defence doctor (Dr Lam) on sick leave not only contradicts the treating doctors but fails to take the overall picture into account.  The overall picture of course includes the fact that since January 2003, the plaintiff had been receiving treatment for his psychiatric problem.  I am satisfied that the length of the sick leave granted was reasonable and I am satisfied that the treating doctors were correct in their opinion that the plaintiff was not able to work before 14 May 2003.

23. Tsui suffered a stroke four months before the trial started and if he had not left the defendant’s company before the stroke, he would not have been able to carry on working there.  Mr Fung said that in the normal course of events, if it had not been for the plaintiff’s accident, he would have succeeded Tsui.  If that happened, Mr Fung’s evidence was the plaintiff would have got an 8% increase in salary.  In addition, Mr Fung’s evidence shows that between 2002 and 2005, there was an increase in overall salaries of about 7.5%.  Therefore, I find that the plaintiff’s notional earnings today but for the accident would be $12,191 ($10,500 x 108% x 107.5%).

24. The loss of earnings to date is therefore : ($12,191 x 36.5 months x 105% [5% being loss of MPF benefit]) – ($7,000 x 105% + $500) – [$26,927 + ($6,300 x 5% x 4)] – ($36,000 x 105%) – ($40,000 x 105%) = $351,383.

Loss of future earnings after January 2003

25. The plaintiff has resumed work as a junior cook since June 2003.  He tendered his resignation to the defendant which took effect as from 21 January 2003.  He received four-fifths of his salary from the defendant up until May 2003.  It is submitted by the defence that he resigned of his own accord.  However, the plaintiff said that when Mr Fung asked him to resume work, he told Mr Fung he could not.  He said he tendered his resignation on 21 January 2003 because Mr Fung said if he did not, he (Mr Fung) would not pay him his four-fifths salary.  I find that if the plaintiff had been able to resume his former work with the defendant, he would have done so instead of going to another restaurant in June 2003 and earning a lesser salary ($7,500).  The medical evidence is silent about when, if at all, the plaintiff may recover completely and resume his former work without any impediments, such as an inability to lift heavy objects or to bend frequently.  I find and of course this involves an element of speculation, that after a lapse of about eight years from now, the plaintiff should be recovered completely to resume his former work.  To reflect this, I propose to use a multiplier of five.  The loss of future earnings will therefore be as follows : ($12,191 - $8,000) x 105% x 12 x 5 = $264,033.

Loss of earning capacity

26. On the basis of my finding above, the plaintiff is clearly at a disadvantage in the labour market.  The defendant is prepared to accept that the plaintiff may be out of work from time to time for a total period of, say, 12 months during the rest of his working life due to a recurrence of the back pain.  The defence are prepared to accept a sum of $8,000 x 12 months = $96,000, but they contend that all damages awarded should be discounted by 40% because of the plaintiff’s pre-condition.  I have stated above that I am not allowing any discounts of the damages to be awarded.  I am prepared to award the sum of $80,000 under this head.

Special damages

27. The following special damages are claimed :

(a)	Medical expenses — they are agreed by the defence : $2,000.
(b)	Tonic food — there was no medical evidence to support the advisability or suitability of this to assist the recovery of the plaintiff, hence only a nominal sum can be awarded (Yu Ki v. Chin Kit Lam and another [1981] HKLR 419).  I award a nominal sum of $1,000.
(c)	Bonesetter fee — the plaintiff did not adduce any evidence to support either the need or quantum; he defaulted to attend the physiotherapy sessions arranged for him; I make no award for this item.
(d)	Travelling expenses — the defence are prepared to agree a sum of $700; I award under this item $700.

The total sum is $3,700.

Summary

The amount of ECC paid, namely $182,789 has to be deducted from the above amounts and interest to be calculated.  I therefore enter judgment to the plaintiff for the sums mentioned above.  I make a costs order nisi that the costs of this action be to the plaintiff, to be taxed if not agreed.