GURUNG ROMI v. PIZZAEXPRESS (HONG KONG) LTD

HCPI 63/2019

[2023] HKCFI 3289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 63 OF 2019

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J U D G M E N T

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1.  The plaintiff (“Gurung”) claims that she sustained injury in an accident at work in the course of her employment with the defendant (“PE”) on 31 December 2016. She commenced the present action against PE for breach of its duties causing the accident. Both liability and quantum of damages are in dispute.

BACKGROUND

2.  At the material times, PE did, and still does, operate a chain of Italian pizzerias/restaurants at various locations in Hong Kong.

3.  Gurung came from Nepal with education up to the equivalent of secondary level in Hong Kong. She emigrated to Hong Kong in late 2005. She has since worked as a cleaner for a year and then as a server in a coffee shop for 4 years. She started working as a waitress of PE in October 2011. In August 2013, Gurung was promoted to the position of captain, and in May 2015 transferred to become a pizzaiolo. She was promoted to pizzaiolo captain on 1 December 2015. She is married. At the time of the alleged accident, she was 33 years old.

4.  Gurung had been posted at different branches of PE. She was deployed to work at Shop 217-220, Level 2, Tsuen Wan Plaza, 4-30 Tai Pa Street, Tsuen Wan (“the TW Branch”) in mid-December 2016. The TW Branch was by then newly opened.

5.  The TW Branch of PE consisted of the front of house which was the guest seating area, and the back of house which was divided into a food preparation area (with a show kitchen) and an enclosed storage and dishwashing area (“the Kitchen”).

6.  Gurung was at the material time a member of her team consisting of one senior and 4 junior to her. As pizzaiolo captain, Gurung’s duties included preparing food and beverage, checking and controlling the quality of food, handling food supplies delivered to the restaurant as well as supervising, managing and providing assistance to the junior staff members at the back of house.

7.  The pleaded case of Gurung is that she was injured at work on 31 December 2016, which was a fortnight after her deployment there. The alleged accident happened at about 1:00 pm when she was retrieving and transferring a box of pizza dough inside the Kitchen. Her right foot allegedly stepped on a patch of water on the floor and slipped. In the course of regaining balance, she injured her back. She continued to work until the end of her shift at 1 am of the following day. She sought medical treatment in the morning of the same day. She returned to work but ceased after a couple of days.

8.  Gurung had since been on sick leave but did not return to work after the expiration of her sick leave. PE allegedly attempted to contact her but in vain. Hence her deemed voluntary termination of employment in April 2018.

9.  Dispute in respect of the details aside, the injury was reported to the restaurant manager and insurer. In February 2018, the parties entered into a settlement (on a without admission of liability basis) whereby Gurung received a total sum of HK$259,497 as employees’ compensation.

10.  In February 2019, Gurung commenced the present action claiming damages for her alleged injury. As mentioned, PE denies liability.

11.  Gurung used to have legal aid, which was discharged in February 2022.

THE KITCHEN

12.  I shall illustrate the layout and configurations of the interior of the Kitchen at the material time.

13.  A floor plan of the TW Branch was produced at the trial. Of the plan, the part showing the Kitchen had been enlarged and produced in the deposition proceedings concerning one of the witnesses for PE back in November 2021 as mentioned below. It is Exhibit P1. Photographs of the interior of the Kitchen also provided the necessary reference.

14.  If one co-ordinates oneself by assuming the position right outside the Kitchen seeking to enter from the front of house by pushing the door of the Kitchen, the door would open to the right. One would notice the rectangular layout of the Kitchen running laterally with its two ends to his right and left respectively. The interior was enclosed by walls with a passageway running the entire length between the two ends of the Kitchen. The passageway was paved with tiles.

15.  Standing in the same position right upon entry into the Kitchen, one would see a tall upright shelving unit on wheels stationed by the wall facing him. To the right of that shelving unit was one end of the Kitchen – the dish washing section. The walls around that section were lined with steel kitchen countertop. On the countertop one would find the sinks and a circular opening through which rubbish and food waste could be discarded into the collection compartment under the countertop. Above the countertop along the walls of that end were wall-mounted shelves, dishwasher and miscellaneous power and water supply equipment and ducts. One also sees from the photographs depicting that end of the Kitchen that a plastic bucket with a top strainer put right next to the waste discarding section of the countertop just mentioned. According to PE, and not really disputed by Gurung, the bucket also served to contain discarded waste such as ice cubes and lemon slices during dish washing.

16.  Standing in the same position right upon entry into the Kitchen but now looking to the left, one would see the other end of the Kitchen, which runs relatively deeper than the end occupied by the dish washing section. One would find on the wall right next to the left of the kitchen door a food hatch, followed by some wall shelving unit above a steel worktop on wheels. The photographs depicted that further down along the same wall up to the end miscellaneous items such as cartons of goods and stacks of plastic trays placed on the floor, but their exact quantity and positioning as at the time of the alleged accident are in dispute. The wall opposite that was lined with the cold storage units, ie the upright freezers and chillers, up to where the tall upright shelving unit facing the entrance/exit of the Kitchen mentioned above.

17.  On the basis of the condition as depicted in the photographs, the passageway of cold storage section was about the width of 3 floor tiles. That should fit the passage of a person. The rest of the passageway was wider by the width of either 1 or 2 floor tiles depending on the spot one stood. On the floor of the passageway, one would find 2 rectangular drainage outlets with metal covers on the floor of the passageway, one at the cold storage section (which will be referred to below as “Drainage A”) and one at the dish washing section (which will be referred to below as “Drainage B”).

18.  A few things to note about the drainage outlets.

19.  First, the location of Drainage A as shown on the layout plan does not align with the reality depicted in the photographs. Relative to the position shown in the layout plan, Drainage A was as a matter of fact located noticeably further away from the entrance/exit of Kitchen and deeper into that section of the passageway.

20.  Second, Drainage B was absent from the layout plan but in fact existed on the floor of the dish washing section as depicted in the photographs.

21.  Third, Drainage A measured 29cm x 57cm in dimension or an area of 0.17m². Judging by the area of the number of floor tiles that it occupied, one can tell that Drainage B was of the same width but longer than Drainage A by the width of slightly more than a tile.

22.  I now turn to the parties’ contentions and dispute.

GURUNG’S CASE

23.  By way of her pleading and witness statements, Gurung referred to the passageway as very narrow with a large quantity of raw food materials and supplies stacked up along the wall opposite to the cold storage units. That was the cold storage section of the passageway illustrated above. The drainage outlet at that section of the passageway, ie Drainage A, was said to be wet and slippery as well as scattered with ice cubes.

24.  Gurung continued to state that immediately before the alleged accident, she was standing in the passageway, carrying a box of pizza dough retrieved from one side and making a turn towards the cold storage units on the opposite side. In the course of that, her right foot stepped on a patch of water and slipped. In regaining her balance, she heard a cracking sound (from her body) and immediately felt a sharp pain on her back.

25.  On the basis of how the accident allegedly happened, Gurung asserts negligence, breach of duty implied to her contract of employment and breach of statutory duties on the part of PE. PE is said to have failed:

(1)  to prevent slip and fall hazard by providing proper and suitable means of inspecting the floor of the passageway as well as effective cleaning system and/or schedule to ensure that the floor of the passageway was kept clean and dry;

(2)  to put up warnings on potential dangerous and slippery condition of the floor;

(3)  to provide personal protective equipment, eg non-slip shoes, to prevent slip and fall hazard;

(4)  to prevent water at the washing/cleaning area from flowing to the drainage, ie Drainage A;

(5)  to make assessment of risks to the safety and health of workers;

(6)  to provide adequate training, instruction and supervision.

26.  For her alleged injury and consequential loss and damage, Gurung claims damages in the total sum of HK$5,185,257 or, net of employees’ compensation, HK$4,925,760.

PE’s DEFENCE

27.  As for the passageway inside the Kitchen at the material time, PE disputes that it was in such wet and slippery condition as alleged by Gurung. Further, ice cubes were not supposed to be discarded on the drainage cover but into the plastic bucket with a strainer or, in case of large quantity, into the sink (referring to what were located at the dish washing section mentioned above). It is also denied that water and liquid from the dish washing section would flow along the passageway to where Gurung was standing, as there was the drainage outlet on the floor of that section (ie Drainage B). Both drainage outlets were functioning free from defects at the material time.

28.  PE does not dispute the incidence of the various duties on its part as the employer, under the applicable statute and common law, and as the occupier to ensure that Gurung was reasonably safe at work in the Kitchen. It however denies breach on the following basis:

(1)  Gurung was required to attend on the job practical training, and had received training, during her employment. The training covered, amongst other areas, manual handling, risk assessment and prevention of work accidents in a kitchen environment.

(2)  Safety notices, manual handling guidelines and warnings were displayed in conspicuous locations on the wall near the entrance of the Kitchen.

(3)  At all material times, all kitchen workers were required to wear slip resistant shoes at work. Gurung wore Croc Shoes designed for the industry with waterproof and anti-slipping features (“Croc Shoes”) which she purchased from PE.

(4)  At the material times, 2 full-time cleaners were designated to work in the restaurant. Apart from the daily scheduled cleaning of the floor of the passageway after the lunch service and before restaurant closing, accidental spillage or breakage of plates or glasses would also be cleaned to ensure the safety of the employees.

(5)  It was Gurung’s duties as pizzaiolo captain at the time to see that the work area, the Kitchen and its passageway included, was kept neat and tidy.

(6)  At the material time, Gurung possessed sufficient knowledge, skill and experience in the task of retrieving and unpacking pizza dough from the box placed on one side of the passageway and transferring them into plastic containers for refrigeration in the cold storage units on the opposite side.

(7)  Gurung had been able to carry out her work in full capacity without any complaints since the commencement of her employment with PE. Nor had complaint been received regarding the alleged wet floor scattered with ice cubes in the passageway of the Kitchen.

29.  While the alleged accident is said to have been caused by the wet floor surface on which Gurung stepped and slipped, the causative bearing of the load which she was allegedly handling at the time is far from clear. So is her allegation that boxes of food ingredients were stacked very high up along the wall of the passageway. Despite her counsel’s attempt to introduce otherwise, the contention that she would not have slipped but for the load in hands or that the effective cause of her injury was the load in hands even in the absence of the slip was never clearly, if at all, made out as a matter of pleading. Nor is there contention that the effective cause of her injury was the motion of retrieving a box out of a tall stack.

30.  In any event, PE disputes having subjected Gurung to unreasonable risk of injury arising out of her handling load at the time on the following basis:

(1)  There was reasonable supervision. Instruction and warning notices were posted on the wall of the Kitchen at the material time.

(2)  Retrieving and transferring the box of pizza dough from one side of the passageway to the cold storage units on the other side of the passageway (and more specifically, the task of retrieving a box of dough to unpack and place the pieces of dough into clear plastic containers for refrigeration) was a simple and non-complicated task which Gurung as an experienced pizzaiolo captain should manage without difficulty. Gurung exercised her own control and judgment on how to carry out the task.

(3)  PE never received complaints from staff about a carton of pizza dough being too heavy. A carton of dough containing 60 pieces weighed about 11 kg. The unpacking and storage of goods would normally be carried out by one kitchen staff. If necessary, additional assistance could be requested and arranged.

(4)  Raw food materials and supplies were not stacked up along the wall opposite the cold storage units. Boxes of pizza dough were not stacked too high at the passageway. In case of concern, Gurung should have communicated the same to the deliveryman to prevent that situation. Alternatively, she should have sought help from colleagues to re-organise by reducing the height of the stack.

31.  Last, PE contends in the alternative that the alleged accident was caused or contributed to by the own negligence of Gurung.

32.  As for quantum, PE contends that both exaggeration of symptoms and pre-existing condition existed in Gurung’s case. With or without contributory negligence on her part, she would have been unable to establish quantum in excess of her employees’ compensation already received.

ISSUES

33.  There are broadly the following issues in dispute:

(1)  Whether the accident happened as alleged;

(2)  Whether the alleged accident was caused by PE’s breach of its duties;

(3)  Whether the accident was caused or contributed to by Gurung’s own negligence and, if yes, to what extent.

(4)  Quantum.

WITNESSES

34.  Besides herself, Gurung called her then colleagues Madam Limbu Sanjita (“Limbu S”) and Madam Limbu Bina (“Limbu B”) to testify.

35.  Madam Chan Mei Kwan (“Chan”) was the restaurant manager of the TW Branch at the material time. She has made her witness statement back in December 2019. She left PE’s employment in September 2021. Due to scheduled departure from Hong Kong for emigration, PE obtained leave of the court on 26 October 2021 for the taking of deposition of Chan under oath before an examiner prior to the trial. The deposition proceedings took place before Mr Martin Wong of Counsel as the examiner on 19 November 2021 (“the Deposition Proceedings”).

36.  Upon verification of the absence of Chan from Hong Kong at the time of the trial, PE sought leave for her deposition in the form of transcript dated 28 November 2021 (“the Deposition”) to be read and given in evidence at the trial. This was not opposed. I saw no other reason for refusing that.

37.  Madam Lai Ka Man (“Lai”) was and still is the human resources manager of PE. Her testimony focused on Gurung’s terms of employment and pre-accident earnings as well as PE’s attempt to contact her to explore resumption of work after her sick leave.

38.  In the circumstances of the present case, credibility of the witnesses’ evidence is crucial. The principles governing assessment of credibility of witnesses are well established. Essentially, the court will consider the contentions and evidence in terms of their inherent credibility, their credibility against the undisputed or indisputable contemporaneous documents, their credibility in respect of specific matters as relevant to their overall credibility and, with caution, demeanour of the witnesses: see for instance, Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53; Chiu Chi Tong v Lau Chong Sai & Anor, HCA 765/2002 at §28 cited by the parties.

WHETHER THE ACCIDENT HAPPENED AS ALLEGED

39.  It is not unfair for counsel for PE to point out from the outset that Gurung was far from precise in her pleading in respect of where inside the Kitchen the alleged accident happened. That was notwithstanding conscious amendment made in July-August 2019 to the plea in respect of the circumstances surrounding the occurrence of the accident. That said, the discernible key features pleaded, as mentioned above, are first, the narrow passageway between the wall against which the raw food materials and supplies were stacked and the opposite wall lined with the cold storage units, and second, the drainage cover at that part of the passageway where it was said to be wet, slippery and scattered with ice cubes.

40.  In her statement filed in December 2019, Gurung repeatedly referred to the floor of the passageway being often wet and slippery as a result of the practice of discarding ice cubes over the drainage outlet cover there. Photographs were exhibited depicting the alleged condition of the passageway.

41.  Gurung then stated her task at the time to be transferring boxes of pizza dough from the stack placed against the wall to the cold storage units on the opposite wall along the passageway. At one point after lowering a box from the stack and trying to make a turn to move towards the cold storage units, her left foot stepped on a patch of water causing her to slip and lose balance.

42.  Gurung’s witnesses, Limbu B and Limbu S, did not witness how the alleged accident happened. However, in substantially similar terms, they provided identical description in their statements as to how ice cubes were in practice discarded directly on top of the drainage outlet cover, thereby causing its vicinity to be wet and slippery.

43.  Put together, what Gurung suggested was that the alleged accident happened at the cold storage section of the passageway in the proximity of Drainage A. In a drawing titled “not-to-scale sketch plan of the locus in quo” adduced by the parties, the location identified and marked to be where the alleged accident took place was about the middle part of the cold storage section of the passageway right next to the edge of Drainage A. When it came to the Deposition Proceedings, that also appeared to be the line adopted by the then counsel for Gurung in respect of the circumstances surrounding the Kitchen at the material time.

44.  Gurung adopted the content of her witness statement mentioned above as her evidence in court. When cross examined, she gave a substantially different version of how and where in the Kitchen the incident happened at the time. Gurung pointed out[1] and confirmed that the accident happened when she was working near the entrance/exit of the Kitchen. She further marked on the layout plan of the Kitchen (Exhibit P2) her position where she allegedly slipped. It was different from what was marked in the “not-to-scale sketch plan of the locus in quo” mentioned above. She was not standing at the cold storage section of the passageway at the time.

45.  Using the similar co-ordination mentioned above in illustrating the layout of the Kitchen at the time, one would find that the location of the alleged accident according to Gurung in court was near the kitchen door and the food hatch to its left and the beginning of the cold storage section of the passageway. As Gurung further explained, the upright shelving unit on wheels facing the kitchen door mentioned above was next to her. The actual location of where she was allegedly injured was thus triangulated.

46.  Coupled with the above observation about the actual location of Drainage A as depicted in the photographs, which differed from that shown in the layout plan, Drainage A was in fact further away from where Gurung was standing at the time. The contentions and particulars, as well as the evidence as per the witness statements, in respect of the wet and slippery condition of the cover of Drainage A or its immediate vicinity become hardly relevant to the occurrence of the alleged accident.

47.  In her evidence in court, Gurung further explained that prior to the alleged accident, she had managed to undertake her duties involving a few rounds of walking along the cold storage section of the passageway uneventfully. Immediately prior to the alleged slipping, she was in the course of handling a box out of the stack of a few boxes placed on the floor where she was standing as mentioned above. All those compound the irrelevance of the alleged wet and slippery condition of the cold storage section of the passageway to her alleged injury at where she now said she was actually standing at the time.

48.  No explanation was, and could possibly be, tendered for the remarkable change of version of such a crucial part of Gurung’s case for the first time during the trial especially when she was always legally represented. Clearly the new version was not the line of examination adopted by her counsel at the Deposition Proceedings. Nor did her present counsel at the trial see that coming. The reliability of Gurung’s entire complaint premised on the original version must be called into serious question, to say the least.

49.  Whichever version it is, Gurung’s case is that the accident happened because her foot slipped upon stepping on a patch of water. That was subject to much scepticism raised by PE with reference to the lack of such complaint by Gurung since the accident.

50.  First, Gurung sent Chan the sick leave certificate from the hospital on 1 January 2017. The WhatsApp exchange between the two in this respect on that day cited below contained no mention of a slipping accident at work by Gurung despite Chan’s probing for details:

“Chan:	How you hurt your back?
Gurung:	After fix the dough it’s start but lass I thought it will be ok but when I goes to bed also can’t sleep it’s was pain then morning time its really hurt.
Chan:	Did anyone know you hurt you back last night?? And may I get more details about this?? What time you get hurt and how also where?
Gurung:	As I tell u fixing the dough it’s start then u know yesterday we hab stock count. As I remember in my lunch time I told to SuM I hab back pain
Chan:	So did you have any back pain happened before?
Gurung:	when I clock in Saga ask me to fix the delivery
Gurung:	No
Chan:	So it’s happening during you fixing the stock yesterday?
Gurung:	Yes”

51.  The exchange continued:

“Gurung:	m really sorry darling even i don’t want this one i know u hab facing lots off problem….u know wt m thinking now just my feeling share to u if saga didn’t order so many thing may be it will not happened I know he help a lot’s just share lol. hope you keep inside ur heart
Chan:	No worries, everything will be better after this week. Just take more rest. And I’m waiting you back
Gurung:	miss your nice smile <kiss emoji> ”

52.  In her WhatsApp to Chan on 5 January 2017, Gurung gave the following further details:

“Gurung:

dear m in hospital i will call u back once i finish my check up as i know we had 12 box of dough, around 1oclok i fix the dough those box i carry one by one and put inside the freeze as well i fix the other delivery which one not so havey like dough due to rush i did not feel any think that moment but 5 o'clock when i took a break my whole body was relax then i felt my back is pain full but that time i thought might be tired then ~ 9 o'clock i start stock count. We have 6 or 7 freeze which one full of stock, due to counting i have to take out and put inside freeze one by one so i did up and down so many time. Counting i finished almost 11:45. I feeling more pain in my back but i thought deu to tired, so i rush to go home. 1oclok i finished my all work and back home took some painkiller medicine but its doesn't work next day i want hospital.”

53.  Upon repeated opportunities, Gurung persisted in referring to her injury at work as a matter of fatigue due to the heavy workload on the day in question. She was not quite able to give a convincing explanation for the complete lack of mention of a slipping accident. That it never crossed her mind to be important is unbelievable in the circumstances. That it was allegedly her husband who typed out the WhatsApp for her could not be the answer.

54.  Second, in line with the information obtained from Gurung, Chan prepared her staff accident report, and PE subsequently filled out the Form 2 dated 5 January 2017. In both, it was described that Gurung hurt her back on 31 December 2016 when she did stock count involving taking out of things up and down from the refrigerator. There was no reference to a slipping accident in the course of such work.

55.  Third, if, which is not really raised and argued, there is ever doubt arising out of possible language barrier between Gurung and Chan in their exchange, Gurung, according to her own statement, also did not actually tell her witness, Limbu B, that she slipped and therefore hurt her back on 31 December 2016. According to her, she simply told Limbu B that she sprained her back when lifting the dough, and she did not think she was too badly hurt at the time.

56.  Fourth, there was her signed statement to the loss adjuster dated 6 February 2017 whereby she still referred to fatigue due to workload and confirmed that she did not slip or had any acute accident in the course of work. Whilst one may not be surprised if any issue were taken as to the accuracy and reliability of such a statement taken by a very much interested party, one could be surprised that the authenticity of the content of the statement was never disputed or that request was never made to require the responsible loss adjuster personnel to testify.

57.  Last, it is also true that there was no record of complaint by Gurung of a slipping accident in any of the relevant medical records or, as will be discussed below, the orthopaedic experts during their joint examination of her.

58.  All things considered, I see force in the argument on behalf of PE that the scenario of a slipping accident attributed to the wet condition of the passageway as a result of ice cubes discarded onto Drainage A could well be an afterthought with such features introduced on top of what was in fact fatigue and/or sprain at work with a view to founding Gurung’s case for breach of duties on the part of her employer. In my judgment, Gurung’s case built on such scenario is unreliable and must be rejected.

WHETHER PE WAS IN BREACH

59.  The change of Gurung’s case in respect of where and how she came to be injured in the Kitchen at the material time brings about complications in considering the issue of breach on the part of PE. Counsel for Gurung submits that the court could still proceed to make findings and adjudge the issue of liability on the basis of the new version of the event so long as the particulars of breach pleaded are literally broad enough to accommodate that.

60.  I cannot agree.

61.  First, the argument defies established principles of pleading. The fundamental idea behind those principles is the presentation of one’s case fairly and squarely which the receiving end of it has to meet. The present situation differs from the running of a pleaded alternative case.

62.  Second, the particulars of breach pleaded, be they specific or broad assertions, are not supposed to be read literally in isolation but on the basis and in the context of the pleaded case of how the accident happened. None of the particulars of breach so pleaded may be deployed as contentions on the basis of a different version of the accident revealed only at the trial.

63.  Third, notwithstanding the attempt to proceed on the basis of the new version of the alleged accident, no suggestion was made to put right the pleaded case in this respect by way of amendment. Considering the likely consequence of any such attempt, if made, at least in terms of the costs incurred up to date, I am not surprised.

64.  So where does that leave us?

65.  The circumstances of the present case, I find, are such that completeness in adjudication could still be achieved, whether Gurung is advancing her original or new version of where and how she was injured at the time. I therefore propose not to dispose of the case on purely principled considerations. I will consider the issue of liability on the basis of both versions of the event.

The pleaded causes and duties

66.  The claim on contract will rise and fall together with the claim in tort: see Yuen Yiu Kwong v Chan Kwok Chuen & Ors, HCPI 1356/1999 (20 December 2002) at §21.

67.  The duty of PE as the employer, both under the statute extensively pleaded and the common law, towards Gurung as its employee to take reasonable care and to devise a safe system of work for her safety at work is not in dispute. The following principles are correctly submitted by counsel.

68.  The employer does not need to decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion whereas there are other spheres that workmen must exercise theirs. This depends on the complexity of the task performed as well as the experience of the employee in question: Winter v Cardiff Rural District Council [1950] 1 All ER 819 at pp. 822-823D; 雲淑莉 v 力根有限公司, HCPI 1142/1996 (22 February 2002) at §15.

69.  In case the relevant task was simple and not inherently dangerous such that the employer could entrust the employee to exercise his common sense to carry out the task without prescribing a particular system of work or giving specific instruction: see Fong Yuet Ha v Success Employment Services Ltd, CACV 100/2012 (28 December 2012) at §§19-21.

70.  In case of slip and fall accident said to be attributable to the wet condition of the floor, such alleged condition must be proved but not by inference from the mere occurrence: see Yau Tsz Hin v Broadway Theatre Co Ltd, HCPI 674/2010 (3 April 2013) at §57.

71.  In ensuring that the floor of the workplace is not wet and slippery, and thus exposing the employee to the risk of slipping and falling, the employer’s duty remains one to put in place a reasonable system in the circumstances of the case. In practical terms, the circumstances may not give rise to reasonable expectation that cleaner would be stationed or measure would be deployed at all times to watch out and to remove spillage as it occurs: see Cheung Wai Mei v The Excelsior Hotel (Hong Kong) Ltd trading as The Excelsior, CACV 38/2000 (22 November 2000) at §48 as well as, for instance, Pak Sai Ming v JV Fitness Ltd [2019] HKCFI 2268 at §§37-39 and Ying Ka Chun v JV Fitness Ltd & Anor [2021] HKCFI 3349 at §§38-47.

72.  As to statutory duties, pursuant to section 19 of the Factories and Industrial Undertakings Ordinance, Cap 59, the Ordinance does not confer a right of action in civil proceedings in respect of an alleged failure to comply with section 6A but its provisions provide reference point for what the reasonable duty may entail. The considerations under the Occupational Health and Safety Ordinance, Cap 509 and Occupational Safety and Health Regulation, Cap 509A are co-extensive with the common law tort, but add nothing in the context of an action for damages for personal injuries arising out of an accident to an employee in the course of his employment: see Rashad Muhammad v Gurung Amrit Singh t/a Fewa Co and Anor, CACV 165/2010 (8 July 2011) at §33; Zhang Quanzhen v Hutchison Hotel Hong Kong Ltd [2020] HKCFI 2721 at §13 (DHCJ To).

The original version of the alleged accident

73.  In her original version, Gurung referred to the tall stack of boxes by the wall on one side of the cold storage section of the passageway, from which she had to retrieve one by one, and to transfer the pizza dough into the cold storage units on the other side of that section of the passageway. In the course of handling one of those boxes, her foot stepped on a patch of water and slipped.

74.  There is dispute as to whether boxes of supplies would be stacked to such height as alleged or allowed to be so stacked. There is also dispute as to whether or not it should have been the duty of Gurung as pizzaiolo captain to see that supplies were stored and placed properly. However, insofar as her injury to her back is concerned, there is no actual contention that the injury was caused in the course of and by the act of retrieving a box from the stack, be it tall or not. The accident happened in the course of her transferring the pizza dough to the cold storage units. The manner in which the boxes were stacked was not material to her alleged injury in terms of causation.

75.  The photographs taken of the interior of the Kitchen show that warning and safety instruction signs in respect of manual handling of load were posted on the wall. There is dispute as to their existence as of the time of the accident. In this respect, she did not impress me as being reliable. That aside, whilst Gurung alleged that she sustained her injury to her back in the course of transferring a box of pizza dough to the cold storage units, her case was the slipping which caused her the injury instead of the load which she was handling. Her case was that she would not have slipped but for the alleged patch of water on the floor in the vicinity of Drainage A. Therefore, the load which Gurung was handling at the time was not causative of the accident and her injury.

76.  The documents show that induction course materials, including those on how to manage manual lifting job, were provided. Gurung also had undergone various assessments before she managed to be promoted. Dispute in those respects aside, Gurung was in any event experienced in terms of the types and natures of the tasks by the time of the accident in working for PE, irrespective of the branch, as a matter of fact. Objectively, the task of transferring the pizza dough, even in the form of a box before unpacking, to the cold storage units was not complicated. She was required to carry out similar task on a regular, even if not daily, basis before the accident. She was sufficiently experienced at the time to be entrusted with the task, which did not require further or special training, warnings or supervision.

77.  On the real cause of the accident and Gurung’s injury according to her original version, which was alleged slipping upon her foot stepping on a patch of water, two suggestions of the cause of such condition were made, one general and one specific. Gurung complains that the passageway was generally wet and slippery, which PE denies. In support, Gurung borrowed from what the photographs depicted as evidence of the interior condition of the Kitchen at the time, which PE also denies. The photographs were said to have been taken by Limbu B at the request of Gurung as evidence in support of her claim. The labels on the stack of boxes depicted in those photographs inform us of their manufacture dates which corroborate the approximate timing of those photographs. As such, those photographs referred to in the Deposition Proceedings and the present trial could only be taken sometime after February 2017 well after the alleged accident. Further, according to Chan, the degree of wetness of the passageway depicted in those photographs would have been similar to what it was supposed to look like after the general washing upon the close of business for the day. What also strikes me is that the photographs depicted that ice cubes were literally put not only on the cover of Drainage A but also the cover of Drainage B which was right in the dish washing section away from the cold storage units. Short of suggestion of actual staging for the needed effect, the picture presented was simply too self-conscious for association with Gurung’s case.

78.  In view of what was so far discussed, Gurung and her witnesses hardly earn this court’s confidence in their evidence in respect of the indiscriminate practice of discarding ice cubes onto the drainage outlet cover(s) in the course of handling the pizza dough. It should also be noted that in her position as the pizzaialo captain, Gurung was supposed to lead by example and to be the role model for her junior team members in keeping the Kitchen clean and tidy. She had the duty of seeing that the kitchen system and process were followed. She had to ensure that her junior team members would do the same, and in case of need to serve as the link between them and her senior.

79.  There is no evidence that discarding ice cubes on the drainage outlet cover in the course of handling trays of pizza dough was a practice pursuant PE’s instruction. On the one hand, Gurung and her subordinates had such an alleged practice. On the other hand, she allegedly received complaints from her subordinates about the wet and slippery condition of the floor (partly) as a result of such a practice. The immediate reaction to such assertion, which this court indeed put to her, is to query why they created the very scenario which they then complained about, instead of their simply stopping the objectionable practice. That Gurung would allegedly consider that nothing could be done about the alleged objectionable practice is hard to accept. More importantly, in the absence of proper explanation, the resultant risk of wet and slippery condition of where Gurung was working at the time, if indeed as alleged, would have effectively been a matter of their own making.

80.  Further, there is no dispute that cleaners were designated at the workplace. According to Chan, the passageway inside the Kitchen was cleaned twice a day, once after lunch and once before close of business at night. Gurung’s case was that that did not happen on that days as it was a busy day, being the New Year’s Eve. However, insofar as whether a reasonably safe system of work was put in place is concerned, I am not impressed that PE should be to blame for such occasional festive situation, when Gurung in her position should have been far from passive in terms of concern and action about the condition of the passageway during service if and when she witnessed that. In my judgment, she possessed the requisite knowledge, expectation and experience in relation to such condition at the time as well.

81.  In any event, the fact was that according to Gurung herself in court, the alleged wet condition of the cold storage section of the passageway did not materialise into actual danger. She managed to travel across that section of the passageway during work 3 to 4 times without slipping. I would not categorise that as a matter of her mere luck. She managed that with knowledge or reasonable contemplation of what would have been patent condition of that section of the passageway, even if it was indeed in such condition. That also lends weight to the appropriateness and adequacy of her footwear, ie the Croc Shoes, which will be discussed in the next section on her new version of the alleged accident.

82.  It follows from the above that insofar as the alleged accident is said to be caused by the wet condition of the cold storage section of the passageway inside the Kitchen, Gurung fails to prove that that was the result of failure on the part of PE to prescribe a reasonably safe system of work and to ensure a reasonable safe place of work.

The new version of the alleged accident

83.  In the new version, the alleged accident is still said to have been caused by Gurung stepping on water and slipping. However, that happened when she was in the course of handling a box out of a stack of a few on the floor of the passageway close to the entrance area of the Kitchen. That makes her position relatively closer to the dishwashing section as opposed to the cold storage section of the passageway in her original version. The condition of that the cold storage section of the passageway becomes irrelevant.

84.  Despite the remarkable difference from her original version, the consideration of the issue of breach attracts the same discussion of the relevant circumstances on the basis of the original version of the alleged accident. Additional circumstances come into the consideration though.

85.  First, unlike the cold storage section of the passageway, the part where Gurung now says the alleged accident took place was more proximate to the dishwashing section. Besides the actual washing activity within the dishwashing section, Gurung confirmed in court that glass, plates and containers after washing would be placed to rest on the stack of plastic trays and the upright shelving unit on wheels which, as she confirmed, was next to where she was standing. The photographs depicted such use and state of the tall upright shelving unit. Chances were that the probably wet condition of that part of the passageway should be within the reasonable contemplation, if not actual knowledge, of Gurung.

86.  Second, even if one somehow confines the consideration to that of the floor of the dishwashing section of the Kitchen, it is unrealistic to expect that to be dry at any moment in view of the very function and activity of that section. The question is whether the condition, albeit not dry, was reasonably safe together with the other features of the system of work in place. One must be able to observe that Drainage B was there to serve the precise purpose of draining away water in that section, and it was even larger than Drainage A as mentioned above.

87.  Third, there is no dispute that Gurung always wore the Croc Shoes at work. It matters not whether they were provided by PE or made available for purchase by her at a discount as an option, as the evidence reveals. The fact was that she had to, and indeed did, wear them at work. In her evidence, Gurung complained about the degree of comfort, size and fit of the Croc Shoes. Justified or not, none of them was the relevant feature of the shoes for the present purpose. It is whether or not the shoes were reasonably suitable and effective in preventing slipping accident. The evidence shows that the Croc Shoes were “bistro clog”:

“… designed with food service, hospitality and healthcare workers in mind … Crocs Lock™ slip-resistant treads, extra protection at the toes, and a variety of graphics come together to help you serve up to your best”

as well as tested and certified in accordance with various identified industrial standards.

88.  Safety shoes can be proved to be inferior or inadequate for their purpose. However, it must also be recognized that occurrence of slipping accident, notwithstanding the use of those shoes, per se does not prove their inferiority or inadequacy for preventing such accident. The court has previously observed that it is impossible to create footwear that cannot slip, but suitable slip-resistant shoes with anti-slip soles made of urethane and rubber with threads are available to allow a maximum amount of material to grip the floor: see Chan Wa Kun v Secretary For Justice for and on behalf of Correctional Services Department [2019] HKCFI 1688 at §44. The test always remains one of reasonableness in the circumstances of the case. To discredit the published features and qualities of the Croc Shoes which Gurung wore at the time, one needs relevant evidence but not the personal knowledge, experience or even opinion evidence of the parties or their lawyers, let alone the court. There is no such evidence in the present case. One must not lose sight of the fact, according to Gurung, that those shoes enabled her to travel along the cold storage section of the passageway under the alleged wet condition for 3 to 4 times at work uneventfully immediately prior to the accident. The fact speaks for itself.

89.  All the circumstances considered, even assuming that the issue of liability were considered on the basis of the new version of the alleged accident revealed at the trial, I conclude that Gurung still fails to prove breach on the part of PE and thus liability for her injury.

Tamang Shushma v PizzaExpress (Hong Kong) Limited

90.  Before leaving the issue of liability, I should mention that while this judgment was being reserved, it came to my notice the judgment in Tamang Shushma v PizzaExpress (Hong Kong) Limited, DCPI 2488/2021 was handed down on 22 September 2023 (“DCPI 2488/2021”). The plaintiff in that case was a senior pizzaiola of PE. She claimed against PE for personal injury sustained in the course of work on 22 December 2016, ie 9 days prior to the accident in the present case. The accident happened at the Yuen Long branch of PE. The plaintiff there claimed that in the course of retrieving a container or tray of pizza dough from the upper compartment of the cold storage unit in the cleaning room, her right foot slipped on a patch of water on the floor causing her to step on a defective drainage cover. She heard a cracking sound and felt sharp pain on her back. Hence her injury.

91.  The similarity of the accident in DCPI 2488/2021 to that alleged in the present case is apparent. The major differences in terms of the pleaded claim in DCPI 2488/2021 are that first, there was said to be difficulty in retrieving the tray of pizza dough out of the cold storage unit in that case; second, the drainage outlet in that case was said to be defective; third, there was in that case no issue of discarding of ice cubes but dripping of water and ice bits onto the drainage outlet cover in the defrosting and handling process; and fourth, the plaintiff there claimed to have stepped on the wet drainage cover which caused her to slip. Also similar to the present case was the fact that there was no eye-witness of the accident in DCPI 2488/2021.

92.  The layout and interior configurations of where the accident happened in DCPI 2488/2021 are different from those in the present case. However, the parties’ respective contentions caused the court there to consider various aspects including the complexity of the task in question, the training, instruction and warning to the plaintiff, the slippery state of the floor and the type of shoes worn. The evidence in that case caused me to believe that the shoes worn by the plaintiff there were also the kind of Crocs Shoes worn by Gurung in the present case.

93.  The court in DCPI 2488/2021 made his findings in respect of the various issues in that case, and concluded in favour of the plaintiff. Judgment was entered against PE. Amongst others, the court there referred to the evidence of the plaintiff, including also the complaint about the size and fit of the shoes, and then expressed his view on the suitability and sufficiency of the Croc Shoes in preventing slipping accident. As discussed, this court refrains from doing so in the present case, in the absence of the relevant technical evidence to discredit the published specifications and tested qualities of the anti-slipping design of the soles of those shoes in the present case.

94.  The legal representatives, including counsel, of the parties in DCPI 2488/2021 were identical to those in the present case, except that the plaintiff’s counsel was changed for the trial of the present case. Counsel for neither party in the present case, particularly Gurung, considered it necessary to draw my attention to DCPI 2488/2021. Hence my seeing no need to raise that with the parties and to invite them to consider making further submissions if desired. In any event, I do not consider that the circumstances of that case or the court’s analysis in that case should in any way affect mine as discussed above in the circumstances of the present case. I therefore say no more about that.

CONTRIBUTORY NEGLIGENCE

95.  I proceed to consider the issue of contributory negligence for completeness.

96.  Experience of coming across the condition of workplace as alleged before the accident is relevant to the existence and degree of foresight of the risk of slip and fall, and hence the duty of one to take reasonable care of oneself upon coming across the same spot: see Pak Sai Ming v J.V. Fitness Limited [2019] HKCFI 2268 at §43.

97.  In Lee Yam Kan v Ng Pui Kuen t/a Wing Sing Scaffolding Engineering and another, HCPI 196/2014 (15 March 2016), the court tried (at §72) to set out factors relevant to the consideration of contributory negligence in an employment context. Properly understood, they could be translated into considering on the one hand the state of knowledge as well as the skill and experience of the employee in performing the task and coping with the working condition, and on the other hand the reality of the situation which would enable the employee to exercise the necessary care for his own safety in performing such task in such working condition.

98.  Whether it were the original or the new version of the event discussed above, the following circumstances of Gurung at the relevant time would have been relevant.

99.  First, that the part of the floor of the Kitchen where she was supposed to work on could be wet and slippery was not unexpected or unreasonable.

100.  Second, she had both responsibilities and authority as the pizzaiolo captain to ensure that the Kitchen floor would not be unreasonably wet and slippery.

101.  Third, the exact condition of the floor of that part of the Kitchen was reasonably patent at the time of her work there.

102.  Fourth, she was wearing the Croc Shoes at all material times, which were reasonably suitable and adequate in preventing any slipping accident in the ordinary course of work.

103.  Fifth, the task in hands was not complex or difficult, and she had sufficient knowledge and experience to take reasonable care of herself in performing such task on the floor in such condition.

104.  Last, that it was a busy day, and hence her expectation to work fast, did not suffice to displace the relevance of the above factors, when there is insufficient evidence of actual pressure in terms of superior instruction or time limit imposed on the specific task in her hands at the time.

105.  Assuming that PE should somehow be liable in accordance with the original version of the incident alleged by Gurung where she allowed herself and her subordinates in her team effectively to create the risk of wet and slippery condition of the cold storage section of the passageway as discussed, she would have been negligent in contributing to her own accident, in my judgment, to the extent of 80%.

106.  Assuming that PE is somehow liable for the accident which Gurung met at the location and in the manner according to her version first revealed in court, it does not appear that she did anything extraordinary, perhaps except for failing to take reasonable care of herself in working on reasonably foreseeable wet and slippery floor near the dish washing section, contributory negligence, I find, should not have exceeded 20%.

AFTER THE ALLEGED ACCIDENT

107.  According to Gurung, she felt severe pain. She continued to work until the end of her shift at 1 am of the following day (1 January 2017). She took painkillers and walked home. Later that day, Gurung attended the Accident and Emergency Department ("AED") of Yan Chai Hospital ("YCH"). The AED recorded her complaint about low back pain after lifting weight the previous night without fall or injury or lower limb weakness. She could walk unaided. Physical examination showed local tenderness over the paralumbar vertebral region. Straight leg raising was full. X-ray of lumbo-sacral spine did not reveal any bony lesion. She was discharged with medication and sick leave.

108.  On 9 January 2017, Gurung attended the AED of YCH again. Her complaint remained that of low back pain after lifting without report of injury. Nor was there record of complaint about lower limb weakness. Similar record appeared in respect of Gurung’s subsequent attendances at the AED of YCH in March 2017.

109.  On 7 February 2017, Gurung attended the Department of Physiotherapy of YCH. The diagnosis was back pain. The range of movement of her trunk flexion and extension was found to be reduced. Physiotherapy treatments were given. The subjective improvement was about 60%.

110.  Meanwhile, Gurung attended the Canadian Asian Neck & Back Institute ("CANBI") for rehabilitation assessment. The mechanism of injury recorded was lifting of a 25kg box of dough from the floor to the waist level. Signs and symptoms of sprain injury of the lower back were presented, including muscle tightness in the paraspinal region as well as reduced ranges of motion of low back for both flexion and extension and transient increase in pain in her low back. Prognosis for complete symptom resolution and early return to work were fair because of physical and behavioural barriers manifested by her resumption of sick leave upon experiencing increased pain after returning to work in January 2017. Rehabilitation course was recommended. When assessed in late February 2017, Gurung reported overall subjective improvement by 60%. Additional exercises for pain relief, flexibility, strengthening and work hardening were implemented.

111.  On 27 February 2017, the Plaintiff attended a private MRI. The imaging showed disc desiccation in L4/5 and L5/Sl with posterior disc protrusion on the left side resulting in the obliteration of the left L4/5 lateral recess and narrowing of left L4/5 and L5/S1 exit foramen, causing impingement of the left L5 nerve root in the L4/5 lateral recess and encroaching the L4 and L5 nerve roots in the exit foramens in the two levels.

112.  On 10 March 2017, Gurung attended a private orthopaedic specialist. Complaint about the mode of injury as mentioned was recorded. The above MRI was also referred to. Physical examination showed tenderness over the left buttock, negative root tension sign and no lower limb neurological deficit. Sprain injury to lower back was diagnosed, and Gurung was treated and discharged with medication and sick leave. In her further consultation on 31 March 2017, physical examination showed tenderness over the left lower lumbar paravertebral region and sacral-iliac joint, negative root tension sign but no lower limb neurological deficit. Similar diagnosis of sprain lower back was given. She was discharged with medication and further sick leave.

113.  In the rehabilitation follow-up report of CANBI in late March 2017, Gurung’s report of subjective overall improvement remained at 60%, and thus insignificant despite therapy. Normal skin temperature was detected. Muscle tightness in the paraspinal region and tenderness in the left side of her low back were respectively noted. Neurological examination of the lumbar spine remained unremarkable. Non-organic signs of axial loading and acetabular rotation were tested positive.

114.  In the rehabilitation assessment by CANBI on 10 April 2017, Gurung complained about constant low back pain, which was aggravated by walking over 15 minutes and exercise involving the back. Physical examination showed walking with a limping gait favouring her left leg, which was contrary to the observation that she walked unaided into the clinic with a normal gait, adopted an upright posture in standing, adopted a flexed posture in sitting and got up unaided from sofa/chair, all without difficulty. She was also able to get on and off the examination table with no difficulty. As to her back, there was no swelling and skin temperature was normal. Range of motion of the lumbar spine was reduced. As to flexion, her fingertips could reach her upper shin. As to extension, she had half of the normal range. Side flexion was within normal range but there was reported low back pain associated with movement in all directions. No pain was reported when she rested in supine or prone lying. On repetitive prone-on-elbow lumbar extension, she reported a transient increase in low back pain. On neurological assessment, Gurung was tested positive in 3 out of 5 categories of non-organic signs, which was considered to be significant for pain focused behaviour. Inconsistencies and submaximal effort were presented. The impression was that she adopted an inactive lifestyle after the alleged injury and had no concrete plan for returning to work.

115.  In her further consultation with the private orthopaedic specialist on 21 April 2017, Gurung was said to have reported no significant improvement of her low back pain despite treatment so far. Physical examination showed tenderness over the left lower lumbar paravertebral region and the sacral-iliac joint as before. Medication and further sick leave were given.

116.  On 22 April 2017, Gurung attended the Department of Traumatology of YCH. There the record was that of sprain injury due to lifting at work in the kitchen. The doctor agreed with the MRI result mentioned above, and came to the diagnosis of a sprained back with some protrusion of discs in L4/L5 and L5/S1 level.

117.  On 16 May 2017, Gurung was examined by Dr David HF Cheng, orthopaedic specialist arranged by the loss adjuster. Dr Cheng recorded her complaint about lifting weight at work without fall or contusion. The diagnosis was simple back sprain which could be caused by lifting of heavy object at work. He also confirmed the MRI findings in February 2017 mentioned above. However, he tended to agree with the observations of the occupational therapist that there was a strong element of abnormal injury behaviour and some degree of exaggeration. Though young, Gurung had pre-existing disc degeneration of the lumbar spine. Dr Cheng opined that Gurung could resume her pre-accident chef job after 6 months of sick leave.

118.  The rehabilitation discharge report of CANBI dated 24 May 2017 contained a similar record of findings as before. It was recorded that Gurung managed to lift up to 10 lbs from the floor to the waist level, and to carry up to 15 lbs for a distance of 20 feet without demonstration of significant physical exertion. The further report dated 3 June 2017 recorded her subjective improvement of 60% with fluctuating low back pain and lower limb weakness. Physical examination showed walking with a normal gait and ability to walk unaided. It also recorded normal skin temperature, muscle tightness in the paraspinal region of the low back, tenderness on the left side of her low back. Non-organic signs of axial loading, and acetabular rotation and SLR discrepancy were tested positive. Neurological examination of the lumbar spine remained unremarkable. In the absence of significant improvement in the previous 2 months, Gurung was considered to have reached maximal medical improvement, and therefore she was discharged from the rehabilitation programme.

119.  In view of static progress, physiotherapy also ended by mid-August 2017 while occupational therapy at the public hospital ended by mid-October 2017. The occupational therapist assessed that Gurung’s overall work capacity did not match her pre-accident job demands. Gurung represented about her plan to change to job with lesser physical demand.

120.  In early January 2018, Gurung was assessed by the Medical Assessment Board. Form 7 stated sprain of back resulting in back pain with prolapsed intervertebral disc L4/5, and loss of earning capacity permanently caused by the injury at 5%. Sick leave lasted until early January 2018.

121.  Gurung then flew to Nepal in 2018. There a MRI was performed. She also received some physiotherapy, but claimed no improvement in her back condition. She apparently stayed there for a month. As mentioned, her employment with PE was deemed to have voluntarily terminated when PE failed in its attempt to contact her for exploring resumption of employment arrangement.

ORTHOPAEDIC EXPERT EVIDENCE

122.  On 2 September 2019 (ie 2 years and 8 months after the alleged injury), Gurung was jointly examined by orthopaedic experts Dr. Leung Hon Bong Adrian (“Dr. Leung”) and Dr. Chun Siu Yeung (“Dr. Chun”) instructed by her and PE respectively. The experts rendered their joint expert report dated 29 October 2019 (“29/10/2019 JMR”), which was followed by their further joint reports dated 12 January 2022 (“12/1/2022 JMR”) and dated 3 March 2022 (“3/3/2022 JMR”).

123.  The experts agreed on the medical history of Gurung set out above. Similar to what the treating doctors have recorded, the experts recorded Gurung’s complaint that she sprained her lower back when she was at the beginning of lifting the pizza dough weighing 10-12 kg from the ground. According to her, she stopped lifting and moved on to other tasks until the end of her shift at 1am of the following day. Both experts observed the different weight (ie 25 kg) she had once told the therapist at CANBI in early 2017 (mentioned above). The experts also noted the discrepancy between the mechanism of injury described by Gurung to the treating doctors and the experts on the one hand and that described in her witness statement on the other hand.

124.  Gurung’s version as per her witness statement, as mentioned, was that she was in the course of moving a box of pizza dough not from a stack of a few on the ground but from the stack placed by the wall of the Kitchen to the cold storage units when she stepped on a patch of water and slipped. When she sought to regain balance, she heard a clicking sound at her back suggesting a sprain then.

125.  As mentioned, Gurung overturned her version of how she came to be injured as per her witness statement during the trial. Her current version under oath is that the incident happened when she was standing closer to the dishwashing section as opposed to the cold storage section. She was in the course of picking up a box of pizza dough from a stack of a few boxes on the ground when she slipped. That was not what she told the experts, and therefore not the mechanism of injury on which their expert opinion was based.

126.  The above is not without significance when one comes to understand the opinion of the experts.

127.  The experts recorded the following complaints of Gurung during the joint examination:

(1)  There would be burning pain on the left buttock and the left low back, which was non-stop and fluctuating in intensity, with increased pain during menstruation, after taking 3-4 steps along the staircase or walking for 5-6 minutes, when bending down as well as in cold or rainy weather.

(2)  The left hand would lose grip so that thing in hand would drop as frequently as once a week.

(3)  Contrary to her indication at the outset of the examination, she complained for the first time in the course of the examination that her left leg would sometimes lose control when walking resulting in a sense of imbalance after the alleged injury. She also complained about numbness of the whole of her left low back outer aspect from the low back to the toes. She claimed she forgot to mention all those at the outset despite being asked.

(4)  After concluding that she had no other problem, she added that she could not stand for 30 minutes without difficulty.

128.  The experts noted the MRI results in 2017 and 2018 mentioned above. They also found the follows from the physical examination:

(1)  Gurung could sit normally. She walked with trace of limping. She was unable to walk on tiptoes, but able to walk on heels bilaterally. Standing on the left foot would increase pain. She could squat on her right foot with heel off the ground and her left foot in front.

(2)  Except for pelvic rotation, Waddell’s simulation tests on the shoulder elevation, shoulder pressure and vertex pressure all showed positive signs.

(3)  There was no swelling, deformity or muscle spasm of the low back. Lumbar lordosis was normal. Tenderness was reported at the left iliac crest.

(4)  There were equal 90 degree straight leg raising of both legs. Sensation decreased by 20-30% and weakness on the whole left lower leg. Tendon reflex of both legs was normal but left hamstring reflex was depressed. Flip test of both legs was normal.

(5)  Measurement of the thigh and leg girth for both legs was the same.

129.  The experts expressed divergent opinion on the condition of Gurung.

130.  Dr Chun advocated a critical view of the complaint and condition presented by Gurung, with specific reference to the manner in which she was working when she came to feel back pain (ie the version which she told the treating doctors and the experts), the existence of significant Waddell’s signs and the pre-existing degeneration of her low back. Correlating the MRI findings mentioned above with the objective clinical findings, Dr Chun felt convinced that what Gurung experienced was spontaneous onset of low back pain at the moment when she commenced lifting the box of pizza dough. It was mechanical low back pain without annular ligament tear, nerve compression/impingement or neurological deficit. In simple terms, Dr Chun was not convinced that Gurung had a real sprain injury.

131.  Dr Leung held a different view. Referring to the records of the treating doctors and the findings at the joint examination, Dr Leung agreed with the treating doctors in that the back pain of Gurung was compatible with a sprain injury if the incident happened in the manner as she reported to them. The pre-existing degeneration, he found, did not differ from what one might expect from a woman of similar age. He opined that such degeneration would not be contributing to her current suffering. In simple terms, Dr Leung considered that there was sprain and annular ligament injury causing Gurung’s condition.

132.  The experts also differed in respect of whether the degree of pain of the low back presented by Gurung was compatible with the clinical examination and radiological findings. Dr Chun opined that it was not whereas Dr Leung opined that it was. However, both found the left lower limb numbness and weakness as well as the loss of control complained about by Gurung during the joint examination were not objectively accountable. Both also considered that Gurung has reached maximal medical improvement.

133.  As to the prognosis, Dr Leung opined that it was fair whereas Dr Chun opined that Gurung should have recovered in weeks. Dr Chun considered that Gurung was capable of resuming her pre-accident job and daily activities without limitation whereas Dr Leung agreed with the assessment of the occupational therapists that Gurung’s overall work capacity could not match her pre-accident job demand, and that she should be fit for lighter duties such as cashier.

134.  It follows that Dr Chun opined that Gurung’s back pain had to do with her pre-existing degeneration. Dr Leung assessed that the sprain injury caused Gurung 8% permanent impairment, of which 30% was attributable to her pre-existing degeneration.

135.  Dr Chun believed 6 weeks of sick leave should suffice whereas Dr Leung endorsed the 1 year of sick leave actually granted to Gurung.

136.  The experts were asked to give their further opinion, and hence the 12/1/2022 JMR. Referring to the circumstances of the incident according to Gurung (as she told the treating doctors and the experts), Dr Chun maintained his opinion that it was hardly a case of traumatic injury. It is important to note what Dr Chun added in this further report. The expert noted the discrepancy in Gurung’s version of the exact circumstances of the incident as she had told the treating doctors and the experts on the one hand and that according to her witness statement on the other hand. Rightly the expert pointed out that the discrepancy would have to be resolved as a matter of fact finding by the court. However, he added that if what happened to Gurung indeed involved her slipping and losing balance, then she might have sprained her low back during such loss of balance. In that event, Dr Chun would attribute 30% of Gurung’s condition to such sprain injury and 70% to her pre-existing degeneration. Dr Chun maintained his opinion explained in the 29/10/2019 JMR with a reminder in respect of the exaggeration and expansion of symptoms and disabilities found in the present case.

137.  Dr Leung acknowledged the discrepancy in Gurung’s version of the exact circumstances of the incident between what she told the treating doctors and the experts and what she set out in her witness statement. However, he described that as minor and understandable. He also considered that either of the two versions would entail sprain injury, only that Gurung would be more prone to sprain injury according to her version of the incident in her witness statement.

138.  In the 3/3/2022 JMR, Dr Leung explained what he considered to be the difficulty in clearly differentiating between annular fibre tear and fissure, the former being the result of a single mechanical stress and the latter being the result of repetitive stress, particularly in case where the subject sustained injury with degeneration background. He referred to the MRI finding of soft tissue edema (swelling) over the midline in L2 to L5 level in February 2017 which no longer appeared in the MRI in March 2018. That appeared to be Dr Leung’s answer to Dr Chun’s opinion that traumatic tear would be expected to heal and normalise in time whereas degeneration would not. However, Dr Chun observed that the annular fissures were still shown despite the passage of over a year, which tended to indicate its degenerative nature. The endema in the midline from L2 to L5, which Dr Leung referred to as no longer appearing in the later MRI, was not the precise locality of tenderness complained about by Gurung when she first consulted the treating doctor. According to the medical record mentioned above, what the AED of YCH found upon seeing Gurung on 1 January 2017 was tenderness at the bilateral paraspinal muscle regions, not the subcutaneous edema at the midline from L2 to L5 referred to by Dr Leung.

139.  In answering Dr Leung’s observation that there was no malingering in the present case but symptom magnification, Dr Chun also rehearsed the whole list of clinical findings of non-organic signs in the present case, namely continuous non-stop low back pain, numbness over the whole of the left lower limb outer aspect, limping gait, inability to walk on tiptoes, squatting with the right foot heel off ground with left foot in front, positive Waddell’s simulation tests, tenderness at left iliac crest (and neither midline nor paraspinal region tenderness), giving way weakness of the left lower limb, left leg out of control, sense of imbalance, sensation reduction of the whole lower limb as well as the loss of grip of the left hand.

140.  Specifically in terms of relevance of pre-existing condition, both experts referred to the 3 situations explained in Chan Kam Hoi v Dragages et Traveaux Publics [1998] 2 HKLRD 958:

(1)  She was almost certain to have gone through her life unaffected by the pre-existing condition but for the injury;

(2)  There is a strong possibility that some other event or natural progression of the pre-existing condition would have brought about her present state;

(3)  Some other event or natural progression of the pre-existing condition would certainly have occurred and would have brought about her present state at some stage in her life in any event.

141.  In the 29/10/2019 JMR, Dr Chun stated that Gurung falls into category (3). In the 12/1/2022 JMR, Dr Chun added that if the mechanism of injury was as that described in Gurung’s witness statement, that there might be sprain injury, and in that event her condition was attributable to the injury to the extent of 30% while 70% was attributable to her pre-existing degenerative low back.

142.  Dr Leung observed that Gurung’s work involved heavy laborious tasks but she managed without any duty modification or symptom prior to the incident. Her spine degeneration was not excessive, compared with other women of her age and occupation. On such basis, Dr Leung opined that Gurung falls into category (1). The pre-existing degeneration contributed to her current condition in the form of incomplete recovery. As mentioned, the degree of that was estimated to be 30%, and 70% of her condition was caused by the sprain injury.

143.  The two experts attended the trial to address the following disputed issues:

(1)  In view of the physical signs and symptoms as described by Gurung and the objective findings at the joint medical examination, what should be the appropriate diagnosis and severity/extent of the injuries suffered by her arising from the alleged accident? (Issue (1))

(2)  Whether the annular pathology depicted in the MRI is in the nature of an annular tear or a degenerative fissure? (Issue (2))

(3)  In what category that Gurung’s alleged injuries fall into having regard to Chan Kam Hoi? (Issue (3))

(4)  Whether and to what extent Gurung’s alleged injuries have caused or would cause her any permanent disability? (Issue (4))

(5)  As a result of Gurung’s alleged injuries, whether she could resume her pre-injury occupation or not? (Issue (5))

(6)  What is the appropriate sick leave period in view of Gurung’s alleged injuries? (Issue (6))

144.  Insofar as mention is necessary, the approach to assessing expert evidence was once explained in Wong Siu Wa v Win Sino Engineering Limited [2018] HKCFI 1663 at §154:

“In assessing the expert evidence, I would respectfully adopt the approach of Stuart-Smith LJ in Loveday v Renton [1989] 1 Med LR 117 (at 125), wherein it was explained that:

(a) The mere expression of opinion or belief by a witness, however eminent, does not suffice.

(b) The court has to evaluate the witness and the soundness of his opinion.

(c) Most importantly this involves an examination of the reasons given for his opinions and the extent to which they are supported by evidence.

(d) The weight to be given to the opinion of an expert depends on:

(1) the internal consistency and logic of his evidence;

(2) the care with which he had considered the subject and presented his evidence;

(3) his precision and accuracy of thought as demonstrated by his answers;

(4) how he responds to searching and informed cross-examination and in particular the extent to which a witness has conceived an opinion and is reluctant to re-examine it in light of later evidence, or demonstrates a flexibility of mind which may involving changing or modifying opinions previously held;

(5) whether or not a witness is biased or lacks independence.”

145.  As readily apparent from his analysis in the joint medical reports and confirmed in his oral evidence, Dr Leung did not dispute that the MRI findings must correlate well with the objective clinical examination findings to come to an accurate diagnosis. In view of those relevant findings already set out above, both the MRI findings and the initial clinical examination by the treating doctors tended to evidence the back pain experienced by Gurung was not associated with nerve root compression, impingement or neurological deficit. The disc desiccation and bulging detected were and remained signs of pre-existing degeneration.

146.  With that borne in mind, the difference between the experts in respect of the existence of a sprain injury must now be resolved in the light of the version of the incident on 31 December 2016 revealed for the first time at the trial. It was not what she told the treating doctors and the experts. Nor was it what she set out in her witness statement. This makes it even more difficult than already to accept Dr Leung’s categorisation of the discrepancy between her version to the treating doctors and the experts and that set out in her witness statement as minor or understandable.

147.  Gurung came to feel pain at her back when she slipped and lost balance in the course of lifting a box of pizza dough from a stack of a few on the ground near the dishwashing section of the Kitchen. There is therefore factual basis for taking on board Dr Chun’s opinion that there might just be sprain injury caused by the slipping and loss of balance, which did not feature in her version provided to the treating doctors and the experts. On this basis, the remaining real difference between the experts lies in the degree to which such sprain contributed to Gurung’s current condition.

148.  With less expectation of being viewed favourably in terms of general credibility, Gurung is also proved to have been unreliable in her complaints and projection of her symptoms and disabilities. Those would have to be discounted for the genuine degree for the assessment of damage. Features of the objective clinical findings, including the various features of symptom exaggeration, discussed above refer. Then there was the pre-existing degeneration in play. I have difficulty in preferring the opinion of Dr Leung that Gurung’s condition was mainly contributed to by the sprain injury as opposed to the pre-existing degeneration. Amongst other, the medical history showed that Gurung experienced low back pain on 2 December 2016, though the record on its face was one of complaint about sprain on that day. Chances are back symptoms, which Gurung also described as sprain, had started to surface even prior to the incident on 31 December 2016. In my judgment, the evidence, critically evaluated as Dr Chun proposed, tends to show that any sprain happening on the material day and in the manner as Gurung divulged during the trial could only be a minor one. The greater extent of the genuine condition of Gurung was attributable to her pre-existing degenerative back instead of such minor sprain.

149.  On the above basis, I turn to the 5 specific disputed issues.

Issues (1) and (2)

150.  These two issues may be conveniently addressed together.

151.  In view of the mechanism of injury revealed by Gurung during the trial, any sprain injury, which Dr Chun would not rule out in circumstances involving slipping and loss of balance, should be minor. That could cause back pain but obviously not severe enough to disable Gurung from carrying on with her other tasks until the end of her shift that day and then walking home unaided (with or without taking painkillers as she alleged). That also did not displace the possibility of the onset of low back pain attributable to her pre-existing degenerative back, which, according to the medical evidence, was not entirely asymptomatic by then as a matter of fact. As Dr Chun pointed out in court, low back pain is a recurrent problem, and prior history of low back pain is a reliable indicator of future low back pain propensity.

152.  In view of the above discussion, the difference in the experts’ observation about the annular pathology depicted in the MRI, ie annular tear or fissure, becomes insignificant. For all fairness, I need only say these. First, the critical consideration of the difference between tear and fissure advocated by Dr Chun, which Dr Leung did not dispute in principle, is founded on sound basis. Second, as discussed, there was evidence of the absence of disabling degree of pain for hours immediately after the incident, which would have been reasonably expected from a traumatic annular tear. Third, there is doubt in the accuracy of Dr Leung’s attempt to answer Dr Chun’s analysis with reference to the difference in the very nature of tear and fissure in terms of their recoverability with the passage of time. Fourth, whilst Dr Leung acknowledged the inappropriate and objectively inexplicable signs presented by Gurung in her complaints and symptoms, the circumstances, in my judgment, call for more scepticism than that applied by Dr Leung about accepting as genuine her complaint about subjective severe, persistent and incapacitating symptoms.

Issue (3)

153.  In view of the above discussion, I do not agree with Dr Leung that Gurung’s case falls into category (1) as defined in Chan Kam Hoi. I accept Dr Chun’s opinion that her case is more skin to category (3).

Issues (4) and (5)

154.  Issues (4) and (5) may be conveniently addressed together.

155.  Dr Chun opined that Gurung should be independent with her activities of daily living. She should also be able to return to her pre-accident work without limitation or restriction. He considered that Gurung should have recovered from the sprain. In other words, any disturbance which Gurung might feel should really have to do with her pre-existing degeneration.

156.  As mentioned, Dr Leung agreed with the occupational therapist of PMH that Gurung’s overall work capacity would not match with her previous job demand and she should be fit to work such as cashier, carpark attendant, janitor and clerical work. Such view should now be critically evaluated in view of the above discussion in respect of the unreliable substantial subjective complaints and symptom exaggeration by Gurung. Indeed, as mentioned, Gurung’s complaints about persistent pain over low back all the way to left buttock and weakness and numbness over left lower limb were objectively unaccountable. Similar inexplicable complaints were noted by the physiotherapist and occupational therapists. Notwithstanding that, Dr Leung assessed that Gurung suffers from 8% permanent impairment of her whole person, subject to 30% discount for pre-existing degeneration.

157.  Table 17-4 of the 6^th Edition of the AMA Guides was the reference for such assessment of the degree of permanent impairment. 8% belongs to the higher end of the range of percentages allocated as appropriate for Class 1 impairment, namely documented history of sprain/strain type injury with continued complaints of axial and/or non-verifiable radicular complaints and similar findings documented in previous examinations and present at the time of evaluation.

158.  Impairment ratings are arrived at using the Diagnosis Based Impairment (“DBI”) method, whereby the class is determined by specific criteria and then adjusted by non-key factors or grade modifiers. Of the 5 classes, Class 0 means the absence of objective problem while Class 1 means mild problem. After the impairment class has been determined on the basis of diagnosis, the final impairment percentage within that class would be determined using grade modifiers, or non-key factors, described in the adjustment grades for the spine, namely functional history, physical examination and clinical studies.

159.  Dr Leung agreed that greater weight would be given to objective physical findings. He agreed that sciatic nerve root tension signs would be important indicators of lumbosacral nerve root irritation, and the most commonly used sciatic nerve tension test would be the straight leg raising test. As mentioned, such test on Gurung at the joint examination and the flip test yielded no remarkable result. That indicated the absence of any lumbosacral nerve root irritation.

160.  Dr Leung also agreed in court that the non-dermatomal numbness and non-myotomal weakness and loss of control projected by Gurung were not accountable. Notwithstanding her complaint about loss of control of her left leg resulting in imbalance since the injury, no muscle wasting of her lower limbs was found at the joint examination as mentioned.

161.  The above put any alleged sensory or motor deficits out of the question. Dr Leung explained in court that he in fact first classified Gurung as falling into Class 2 impairment, but discounted that with reference to the non-organic signs to become Class 1 impairment. However, that would not explain how this case should be placed near the top end of permanent impairment in that class, ie 8%. According to the 6^th Edition of AMA Guides, Class 1 covers patients who present with persistent pain and “non-verifiable” radicular complaints that are documented repeatedly after an identifiable injury. These patients have no objective findings, and therefore are often given a diagnosis of “chronic sprain/strain” or “non-specific” back or neck pain. The current methodology allows these patients to be rated in that class with a range of impairment ratings from 1% to 3%.

162.  All matters considered, I am not satisfied that it would be safe to accept Dr Leung’s assessment of 8% permanent impairment (subject to discount for pre-existing degeneration). I prefer the opinion of Dr Chun that Gurung should have been capable of resuming and managing her pre-accident job after reasonable sick leave and recovery.

163.  As confirmed by Lai, which I accept, attempts had been made by PE to contact Gurung with a view to exploring resumption of work after the expiry of her sick leave. Whilst there was no particular policy regarding work or duty adjustment, Lai confirmed that arrangement, if necessary, would be considered. That did not happen as PE’s attempt was in vain. Hence Gurung’s deemed voluntary termination of her employment. The fact was that Gurung changed to her part-time cashier job at a large-scale supermarket after her return from Nepal to Hong Kong in 2018.

Issue (6)

164.  According to the medical evidence, Gurung should have achieved maximal medical achievement by mid-2017. Dr Leung’s endorsement of the 1-year sick leave granted by the treating doctors cannot stand in view of the critical evaluation of the medical evidence and the reasonable period of various therapies. All matters considered, I would be prepared to proceed on a much less stringent basis than that suggested by Dr Chun, and therefore allow 6 months of sick leave in the present case.

QUANTUM

165.  On the basis of the above findings, I turn to the various heads of claim.

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

166.  Gurung suffered recurrent low back pain from a minor sprain without any fracture. No surgery, but physiotherapy and occupational therapy, was entailed. She managed to walk unaided and to handle air travels for hours. With the exaggerated symptoms and disabilities discounted, she should really have reached maximal medical improvement, as mentioned, by mid-2017.

167.  Counsel for Gurung cites David John Slater v Commissioner of Police [2017] HKCU 1715; Lai Kam Wah v Wing & Kwong Co Ltd, HCPI 1131/2002; Wong Man Kin v Golden Wheel (C&HK) Transportation Co Ltd [2015] HKCU 1647; Lam Wah v AS Watson & Co Ltd, HCPI 676/2007; Cheuk Wan Hing v Chan Wai Hung trading as Lam Yin Company, HCPI 85/2015; Chan Yuet Keung v Harmony (International) Knitting Factory [2010] 5 HKLRD 599; and Ng Ning Fu v Leader Engineering & Construction Ltd, HCPI 173/2015 in support of her claim for HK$350,000 for PSLA. The above findings however compromise the reference value of these cases as comparables in terms of circumstantial proximity.

168.  Counsel for PE refers to cases including Wong Chun Kin v Caritas Hong Kong [2019] HKDC 556; Singh Satnam v Wong Chun Fung, HCPI 786/2009; Chu Sio Long v Cheung Ho Yin & Anor, DCPI 580/2011; Ng Ning Fu v Leader Engineering & Construction Ltd & Anor, HCPI 173/2015; Pak Siu Hin Simon v JV Fitness Ltd, HCPI 574/2014; and Chan Lok Hang v Swire Resources Ltd [2018] HKCFI 1463. It is submitted that an award for PSLA in the present case should not exceed HK$200,000 subject to discount for pre-existing degeneration.

169.  All cases and circumstances considered, I tend to agree the range of award for PSLA should be HK$200,000-250,000.

Pre-trial loss of earnings & MPF

170.  There should be no dispute that this court is not bound by the sick leave which a plaintiff has obtained for the purpose of assessing his or her loss of income. The court must come to its own finding as to the reasonable sick leave, and thus period of incapacity to work, as well as any compromise in the income level after resumption of work.

171.  The difference between the medical experts in respect of the reasonable sick leave period is substantial, being 6 weeks versus 1 year. In line with the above findings, I would be prepared to proceed on the basis of 6 months of sick leave and that Gurung should be able to resume her pre-accident job. On the basis of the agreed average pre-accident monthly income of Gurung in the sum of HK$19,037.91, the loss of income together with MPF benefits would be (HK$19,037.91 x 1.05 x 6) say HK$119,939 subject to discount for pre-existing degeneration.

Future loss of earnings

172.  On the above basis, the loss of earnings of Gurung should have ended well before trial.

Loss of earning capacity

173.  This is to compensate for the handicap in the labour market in the form of risk of losing the employment or falling under-employed as a result of the physical disabilities: see Moeliker v Reyrolle [1977] 1 WLR 132; Lo Hing Kin Nelson v Personal Representative of Lam Yuk Wan (deceased) [2017] 3 HKLRD 294.

174.  In closing, counsel for Gurung reduced this head of claim to HK$120,000. On the basis of the above findings, this head of claim is not justified as a matter of fact.

Special damages

175.  Gurung reduced her claim for miscellaneous special damages from the pleaded amount of HK$17,575 to HK$16,925. Medical expenses in the sum of HK$11,255 is agreed subject to discount on account of pre-existing degeneration. So is the claim for medical equipment, medication etc in the sum of HK$1,820.

176.  PE backs out from its admission in its answer in respect of the claim for travelling expenses in the sum of HK$1,000. The reason is the component of HK$600 for attending meetings with legal advisors, which should have been part of the legal costs and disbursements instead of special damages. Counsel for Gurung confirms the correctness of such understanding. For that reason, the sum admitted becomes HK$400 for travelling expenses for attending medical treatment and examinations. Again, that is yet to be discounted for pre-existing degeneration.

Employees’ compensation

177.  Credit should be given to the employees’ compensation in the sum of HK$259,497 already received by Gurung.

Interest

178.  The interest rate on general damages should be at 2% per annum calculated from the date of service of the writ to the date of judgment and that the interest on damages for pre-trial loss of earnings be at half judgment rate from the date of accident until payment of Employees’ Compensation and thereafter on any remaining balance, after deduction of Employees’ Compensation, up to the date of judgment.

CONCLUSION

179.  The quantum arrived at above is yet to be discounted on account of pre-existing degeneration and contributory negligence. Even assuming the pre-existing degeneration should account for 50% (as opposed to 70% according to Dr Chun), Gurung would have been left with no real damages net of the employees’ compensation already received.

ORDER AND COSTS

180.  The claim is dismissed.

181.  Following this event, PE should have its costs of the action.

182.  Pursuant to the order of Hon Marlene Ng J dated 26 October 2021, whilst PE should initially pay all the costs of and occasioned by the Deposition Proceedings including the fees of the examiner, costs of the place of the examination, and recording, transcripts and translation services, the issue of liability for such costs was reserved for determination at trial. Counsel for Gurung argues that such costs should in any event be borne by PE. I see the basis for arguing that such costs/expenses were incurred solely to accommodate the witness for PE, which would not have been necessary in the ordinary course of a trial. However, costs incurred for the engagement of legal representatives in attending the Deposition Proceedings should not be so excepted as the same would have been incurred, had that been part of the trial in respect of the evidence of one of the witnesses.

183.  I therefore make a nisi order that:

(1)  Gurung shall pay PE’s costs of the action, including any costs reserved, to be taxed, if not agreed, with (to avoid doubt and with no disrespect) certificate for one counsel.

(2)  Costs under (1) above shall include the costs incurred in and occasioned by the Deposition Proceedings on 19 November 2021 save that there will be no order as to (i) the costs occasioned by engaging the examiner; (ii) fees of the examiner; (iii) cost of the examination venue; (iv) cost of recording, transcripts and translation services, all already borne by PE.

(3)  Gurung’s own costs up to discharge of legal aid shall be taxed in accordance with the legal aid regulations.

184.  In the absence of application in 14 days to vary, the nisi costs order will become absolute in the absence of further order.