CHENG LUNG FONG v. MITOYO HONG KONG LTD

HCPI 63/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 63 OF 2007

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J U D G M E N T

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Facts

1.  This is a relatively straightforward personal injuries action.  The plaintiff, 27 at the time of the accident, worked as a senior waitress in a Japanese restaurant in Happy Valley.  It was owned and operated by the defendant.  On 22 January 2005 before noontime, she was mopping the floor of the restaurant in preparation for opening for business for the day when she injured her back.  She claims damages as a result.

2.  The Court has heard factual evidence from the plaintiff and two defence witnesses.  However, apart from the plaintiff, no one eye-witnessed the accident.

3.  Having considered carefully the evidence of the witnesses, I make the following findings relevant to liability.

4.  It was part of the plaintiff’s job as a senior waitress to prepare the restaurant before opening for business everyday.  That means that from 11 am to 12 noon, the plaintiff and her fellow waiters/waitresses would have to clean the restaurant premises and prepare the tables.  Amongst other things, they had to mop the floor of the restaurant, which was about 2,000 square feet in area.  Usually, the job was shared by two persons, but on the day in question, it was done by the plaintiff alone.

5.  However, I find that the Japanese restaurant was generally very clean, and in fact, if necessary, a second round of cleaning would be done after the lunch session, before the evening session was to begin.  I accept the evidence of DW2, a fellow waiter at the time (who has since become an assistant manager) that there was more than sufficient time to mop the floor and prepare the tables.

6.  The uncontradicted evidence of the plaintiff was that she and her fellow waiters/waitresses were supplied with a traditional type of wet mop to mop the floor.  It was a traditional cotton string mop with a wooden handle of 4 feet in length.  It had no built-in wringer.  Instead, it was supplied together with a mop bucket with a wringer fitted to the mouth of the bucket.  The wringer could not completely wring out all the excess water from the mop head.  Depending on individuals, water could still be dripping from the mop after wringing it in the mop bucket, which was the case with the plaintiff.

7.  I accept the plaintiff’s evidence that there were other types of mop, including sponge mops and synthetic strip mops, available on the market at the time.  They were lighter mops and it was easier to wring them out.

8.  A wringed mop of the type used by the plaintiff at the time, still with water dripping from the mop head, would weigh about 1.8 kg whereas a wringed synthetic strip mop would weigh about 1 kg.  A wringed sponge mop would only weigh 0.4 kg.

9.  The plaintiff said in chief that she would not use her hands to wring the excess water from the mop head because it would make her hands dirty.  She accepted that gloves were available but they were to be worn for cleaning tables only.  She subsequently said in cross-examination that she did not know that one could use hands to wring out excess water, and had never seen others doing so.

10.  I do not believe her evidence.  I find that she must have been aware that it was possible to use one’s hands to wring out excess water if need be, and that gloves were available for use for such purposes.  Understandably, she did not want to use her hands to wring out the excess water, but that is a separate matter.

11.  The plaintiff said that on the day in question she had to mop the floor in a rush.  As I said, I accept that on that day, she was the only person instructed to mop the floor.  However, I do not accept that if she ever needed help because of shortage of time, she could not have asked either her colleagues to help her, or the restaurant manager to assign additional manpower to share the mopping job.

12.  The plaintiff said, and I find, that she injured her back whilst mopping a very small cashier counter within the restaurant.  The counter was a very small area, triangular in shape.  Tables were constructed along the sides of the counter, leaving an open area of about 16.5 square feet within the counter to house the cashier.  The plaintiff said there were boxes of documents placed beneath the tables inside the counter, as well as a shelf on which documents and a fax machine were placed.  Moreover, there were a rubbish bin inside the counter and two stools, one stacked on another.  It was a cramped area.  The counter was accessed by a half-size door which could be opened inward and outward.

13.  At the time of the accident, she had opened the door to the counter outward, and was standing at the entrance of the counter to mop the floor inside.  According to the demonstration she gave at trial, she stood at the entrance of the counter and extended the mop into the cashier area to mop the floor there.  After finishing the area immediately in front of her, she had to move the mop to the right side to mop a narrow area to her right.  This she did by raising the mop head by about one foot and turning it horizontally to the right by one foot.  She said she had to lift the mop head because there was a rubbish bin on the floor in the middle.  In cross-examination, she could not really explain why she did not simply pull the mop head back towards herself after mopping the front and push it towards the right to mop the area there, instead of raising and turning the mop head in the way she did.

14.  In any event, she said in evidence that as she was turning the mop head to the right she twisted and sprained her back.  She felt a sudden pain in her back and went to hospital for treatment.

Discussion on liability

15.  In the statement of claim, a shotgun approach has been adopted, and various bases for establishing liability have been pleaded.  However, everything boils down to whether the employer has breached its duty owed to the plaintiff as an employee.  In this regard, one is really concerned with the provision and maintenance of safe and appropriate plant and equipment, a safe place of work, a safe system of work and adequate and sufficient supervision.

16.  It is not pleaded that the traditional cotton string mop was inherently unsafe equipment for use.  No expert evidence to that effect was adduced.  Although at trial, there were suggestions that the mop, when wet, was heavy, there simply was no suggestion that by itself it amounted to evidence of negligence or breach of duty.  Nor do I think that such a case is open to the plaintiff on the pleadings.

17.  To be fair to Mr Patrick Lim, appearing for the plaintiff, he did not put his case that way in final submission.  Rather, he emphasised on the foreseeability of risk and the unsafe system of work.  He submitted that the defendant had failed to instruct the plaintiff on the safe manner of performing her work, and in all the circumstances of the case, the system of work in question was unsafe.

18.  I accept Mr K C Chan’s submission, made on behalf of the defendant, that the task of mopping concerned here was such a simple and straightforward one that it was reasonable for the defendant to let the plaintiff decide her manner of work.  As was pointed out by Lord Oaksey in Winter v Cardiff Rural District Council [1950] 1 All ER 819, 822 to 823, an employer’s duty to his employees does not require the employer 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 and there are other spheres in which foremen and workmen must exercise theirs.  As his Lordship pointed out (at p 823A),

“where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot.”

19.  A host of local cases are to the same effect: Cheung Suk Wai v Attorney General, PI 536 of 1996, 1 November 1996, Leong J; 雲淑莉對力根有限公司, HCPI 1142/1996, 22 February 2002, Deputy Judge Lam; Wong Tai Wai David v Hong Kong Cable Television Limited, HCPI 541/2001, 13 August 2002, Deputy Judge Fung; Liu Wai Leung v Asia Construction Company Limited, DCPI 501/2008, 8 September 2008, Deputy Judge P Li.  Of course, all these cases turned on their own facts, but they provided illustrations of the same principle that for a simple and straightforward task, where the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the employee on the spot.  For that reason, I do not find the decision cited by Mr Lim, Bitto v Cheng How Kiu, HCPI 823/2008, 8 March 2010, Deputy Judge Burrell, which turned on the peculiar facts of that case, to be of particular help.

20.  In the present case, mopping the restaurant floor, including mopping the floor in the cashier area, was a simple and straightforward task.  The decision how it should be done had to be taken frequently by the employee doing the mopping.  Whatever prior instructions the employer could have given to its employee would have been very general matters and matters of common sense, and they would have been quite unnecessary.  After all, one is not talking about asking a primary school student to mop the floor.  One is concerned with an experienced working adult here.  Nor would it be realistic to expect the employee tasked with mopping the floor to go back to his or her employer all the time or even from time to time to ask for instructions as to how a particular area should be mopped.  What is involved in the present case was a cramped cashier area.  To be sure, there were stools and a rubbish bin inside the cashier area, and there were boxes on the floor as well according to the plaintiff.  But I do not find any of this to constitute any exceptional or special circumstances which called for special instructions or supervision from the employer.  I find the cashier area not much different from the rest of the restaurant, where there were also tight corners, as well as areas underneath tables and chairs which the employee would have to mop.  Whether he or she ought to move the chairs or tables, or for our present purposes, the rubbish bin or boxes, in order to mop a particular area in question would be something within his or her discretion.  There was no question of his or her requiring specific instructions or supervision from the employer.

21.  In the circumstances of the present case, it is quite unnecessary to focus on the particular way the plaintiff chose to mop the cashier area (by lifting the mop head and turning it from left to right).  There certainly were different possible ways of mopping the cashier area.  She chose a particular way to do her job and injured herself.  That was unfortunate.  However, the main point here is whether she could lay the blame for her injury on the employer.

22.  There were electric cables underneath one of the tables inside the cashier counter.  But this is a red herring because even according to the plaintiff, they were blocked by the boxes placed beneath the table, and her particular way of mopping the cashier area had nothing to do with the cables, which she did not even notice.

23.  I accept that so far as the wet mop was concerned, the strain it exerted on the back of the plaintiff was not necessarily limited to its weight of 1.8 kg.  Depending on how the plaintiff held the mop and her posture, the strain exerted on her arms and back could be substantially more than 1.8 kg.  However, still one is not talking about a grossly excessive weight which no reasonable employer should have allowed his or her employee to handle without prior instructions and proper supervision.  The plaintiff is 4 foot 11 inch tall and was 110 lbs at the time of the accident.  I do not find it unreasonable for the defendant to ask her to handle the wet mop in the circumstances of the case.

24.  Moreover, the plaintiff cannot have it both ways.  Given the very small area in question and the fact that she was standing at the entrance of the cashier area, either she was only bending slightly forward when she turned the mop head towards the right, or she was not holding the mop by the far end of the wooden handle.  According to her demonstration, she was only bending slightly forward when she raised and turned the mop.

25.  In any event, as I said, I disbelieve the plaintiff when she said in evidence that she did not know that one could use one’s hands to wring out excess water.  I find that gloves were available for her to use to wring the mop out.  I can understand her reluctance to do so, but in terms of breach of duty and liability, this is again a circumstance that must be taken into account in assessing the reasonableness of the employer’s action or inaction.

26.  I accept that the plaintiff was the only person instructed to do the mopping work on that day.  As I said, I do not accept that even if she had asked for help, no such help would have been forthcoming from either her colleagues or her superior.  Again, whether to ask for help was a decision that should reasonably have been made by her on the spot rather than by her employer.  Moreover, I accept the evidence of DW2 that generally speaking, time was not a problem.

27.  I have not forgotten that mopping the floor was a repetitive task.  However, first, this does not turn the mopping job into a complicated or inherently dangerous one.  Secondly, nor did it make the work one which would require prior instructions or on-the-spot supervision by the employer.

28.  I accept that there were other types of mop available on the market.  However, Mr Lim has very fairly accepted that that by itself cannot be evidence of negligence or breach of duty.  Indeed, in the absence of expert evidence, all one can say as a layman is that each type of mop has its apparent pros and cons in terms of absorbency, scrubbing power, weight, ease of wringing, ease of handling and use, and maintenance.  In any event, there is no evidence that any employees, including the plaintiff, had ever mentioned to the management that the mop or type of mop supplied to them for use was not suitable for the purpose.

Conclusion on liability

29.  In conclusion, I find that the plaintiff has not been able to establish a case on liability.  I have not found it necessary to go through the different causes of action to conclude that under each of them, liability cannot be established.  In my view, in gist, there simply was no breach of duty under any of these causes of action relied on.

30.  In those circumstances, the question of contributory negligence does not arise in the present case.  However, for what it may be worth, I should state that if I had been of a different view on liability, I would have found the plaintiff guilty of contributory negligence to a substantial extent.  On the facts, I would have assessed it at no less than 50%.

31.  Given my conclusion on liability, I will only be brief with quantum.

Injuries

32.  The plaintiff sustained a sprain back injury in the accident.  She received outpatient treatment as well as physiotherapy.  She was assessed by a physiotherapist appointed by loss adjustors as well as experts retained by both sides to the present litigation.  She has also undergone assessment by the medical assessment board for the purposes of employees’ compensation proceedings.  The Court has had the benefit of considering the various medical reports as well as hearing evidence from Dr Johnson Lam and Dr Danny Tsoi, orthopaedics experts for the plaintiff and the defendant respectively.

33.  Furthermore, the Court has had the benefit of a surveillance report as well as a surveillance DVD, which the Court has watched.

34.  It is plain that the sprain injury suffered by the plaintiff in the accident was not serious.  However, Dr Tsoi very fairly accepted in examination that probably the plaintiff also suffers from a minor bulging of L5 with some right nerve root irritation.  This is quite plain from the MRI report as well as some of the symptoms, such as right big toe weakness, about which the plaintiff has been complaining since a very early stage.

35.  However, having considered the experts’ evidence, the surveillance report and the plaintiff’s evidence both in terms of its contents and her demeanour at trial, I have little difficulty in concluding that the plaintiff has exaggerated her symptoms and difficulties.  Amongst other things, I do not believe that the plaintiff required a stick for walking save, perhaps, for a very short period of time.  This is quite plain from some of the earlier medical reports prepared by the treating doctors.  The plaintiff’s repeated assertions in the box that the treating doctors got the facts wrong when they prepared the medical reports were disingenuous.  The surveillance DVD also shows quite clearly that the plaintiff could walk with a normal gait and at a normal pace.  She could bend her back well.  All this contradicts the symptoms she presented to the experts when examined.  I have not forgotten the time difference here; however, like Dr Tsoi, I am unable to explain the difference in performance by reference only to the lapse of time and improvement during the meantime.  In fact, in some of the physiotherapy reports prepared earlier, inorganic signs that could not be explained by reference to the injury and objective findings were noticed.

36.  I take Dr Lam’s point that very often patients would exaggerate their symptoms as a way to communicate to doctors about their symptoms and difficulties.  To some extent, I accept that is true.  However, in the present case, I find as a fact that the plaintiff has substantially exaggerated her symptoms.

37.  As for the MRI report, Dr Lam accepts that a diagnosis cannot be made on a MRI picture alone, and quite often, an impingement shown on a MRI picture may not directly translate into pain or symptoms on the part of the patient.

38.  To be fair, Dr Lam has prepared his reports without the benefit of the surveillance DVD.  Moreover, his point that the fact that a patient has exaggerated her symptoms does not mean that she is not objectively suffering from some condition is a valid one.  However, it cannot be denied that Dr Tsoi, who has likewise not had the benefit of the subsequent surveillance DVD, has more accurately assessed the plaintiff’s condition in terms of the exaggerated symptoms.  On a whole, I prefer his diagnosis and prognosis to that of Dr Lam’s.

39.  This not to say that the experts are miles apart.  In fact, the only real difference lies in the effect or residual effect of the minor L5 nerve root irritation or impingement on the plaintiff and her working ability.  In this regard, I prefer Dr Tsoi’s assessment.  The only residual symptoms are impaired sensation over the lateral aspect of the right thigh and leg and over the dorsal aspect of the right foot, with very minor loss in dorsiflexion power of the right big toe, as well as some residual back pain.  Dr Tsoi opined that the residual symptoms would be in the form of discomfort after prolonged or more strenuous assertions.

PSLA

40.  Having considered the factual and medical evidence as a whole, I would have awarded $150,000 for pain, suffering and loss of amenities (PSLA) if liability had been established.  I agree with Mr Chan that the present case falls far short of the serious injury category.

Jobs and incomes

41.  The plaintiff has not resumed working up to the time of trial.  Her evidence on efforts to find jobs was most vague and unsatisfactory.  For the sick leave period, I accept Dr Tsoi’s evidence that at most one is talking about 12 months here.  I tend to think that the sick leave certificates actually obtained by the plaintiff were based more on her exaggerated complaints than any objective findings.  As for post-sick leave work, Dr Tsoi took the view that probably the plaintiff’s symptoms would have resolved themselves in several years’ time.  Thereafter, the plaintiff’s working ability should not be affected save that her working efficiency might to some extent be lowered by her back condition.  Translated into jobs and incomes, I would proceed on the basis that by the time of the surveillance in May 2008, the plaintiff was able to resume working as a waitress.  Thereafter, the only effect of her injury would be a minor reduction in her working efficiency, which I would translate into a 10% reduction in wages.

Pre-trial loss of earnings

42.  The pre-accident income was $10,550 per month plus 5% MPF.

43.  Therefore for the 12-month sick leave period, the total loss was:

$10,550 x 12 x 1.05 = $132,930.

44.  From 22 January 2006 to (say) 22 May 2008, the partial loss is calculated by reference to a notional income of $6,500 per month, which is a figure contended for by Mr Lim.  It is based on the average income of a female sales clerk, a fast food cashier and a customer service worker.  The partial loss during that period of time was:

($10,550 - $6,500) x 1.05 x 28 months = $119,070

45.  Thereafter up to the date of judgment, the partial loss has been:

$10,550 x 1.05 x 10% x 23.5 months = $26,032

Post-trial loss of earnings

46.  As for future loss of earnings, the plaintiff is now 33 years old.  I would adopt a multiplier of 15.  The future loss is:

$10,550 x 1.05 x 10% x 12 x 15 = $199,395

47.  In the above calculations, I have not taken into account any possible pay rise as none has been suggested.  Nor have I taken into account any possible tax liability, as none has been pleaded.

Loss of earning capacity

48.  The plaintiff has not returned to work.  Her past and future losses have been calculated on a notional basis.  As I said, her evidence on her efforts to find jobs was most unsatisfactory.  If liability had been established, I would not have found it appropriate to award any damages for loss of earning capacity on top: King Light Industrial Ltd v Lo Wai Keung [1994] 3 HKC 54, 61H to 62G.

Special damages

49.  As for special damages, medical and travelling expenses in the respective sums of $3,925 and $1,700 are agreed.  As for Chinese herbalist treatment and medicine, a sum of $25,000 is claimed.  However, little evidence has been adduced to justify the amount claimed.  A conventional sum of $3,000 would have been appropriate.

Future medical expenses

50.  As for future medical expenses, I accept Dr Tsoi’s evidence that there is no question of surgery, or physiotherapy treatment here.  No award would have been made.

Conclusion on quantum

51.  In summary,

PSLA	$150,000
Pre-trial loss of earnings (inclusive of MPF)	$278,032
Post-trial loss of earnings (inclusive of MPF)	$199,395
Loss of earning capacity	Nil
Special damages	$8,625
Future medical expenses	Nil
	$636,052

52.  Employees’ compensation in the total sum of $319,837.90 has been received.  Had liability been established, it would have to be deducted from the global sum (as reduced by the percentage of contributory negligence).

53.  If liability had been established, special damages would have carried interest at half the judgment rate from the date of accident to the date of judgment (and thereafter at the judgment rate).  The award for PSLA would have carried interest at the rate of 2% per annum from the date of writ to the date of judgment (and thereafter at the judgment rate).

Outcome

54.  For the above reasons, the action is dismissed.  I make a costs order nisi that the plaintiff pay to the defendant its costs of the action, to be taxed if not agreed.  I further order that there be legal aid taxation of the plaintiff’s own costs.

55.  I thank counsel for their assistance.