FONG YUET HA v. SUCCESS EMPLOYMENT SERVICES LTD

CACV 100/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 100 OF 2012

(ON APPEAL FROM HCPI NO. 345 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hong Yeung VP:

1.  I agree with the judgment of Kwan JA.

Hon Kwan JA:

2.  This is the appeal of Madam Fong Yuet Ha, the plaintiff herein, against the judgment of Deputy Judge Lisa Wong, SC given on 18 April 2012.  The judge dismissed Madam Fong’s claim for damages for personal injuries as a result of her accident at work on 10 October 2006.  She fell from a plastic stool when she stood tiptoe on it to retrieve some canned food in the upper shelf of a hanging cabinet in the kitchen of the office.  If the judge had found for Madam Fong on liability, she would have awarded damages, less employees’ compensation in the net sum of $495,495.48.  Madam Fong seeks to set aside the judgment and to have judgment entered in her favour in the said sum against the defendant, Success Employment Services Limited (“Success”), contending that the judge had erred in holding that she could be trusted to exercise common sense in the discharge of her duty without specific instruction or reminder what she should or should not do.

3.  We dismissed her appeal at the end of the hearing.  These are the reasons for our judgment.

The background matters

4.  The relevant background matters are taken from the judgment below.

5.  Success carried on business as an employment agency, specialising in the introduction of domestic helpers and chauffeurs to local families.  It opened a branch office in Causeway Bay (“the Branch”) on 1 February 2006.  The Branch also served as a dormitory for some of Success’ overseas domestic helpers.

6.  Madam Fong was 44 years of age at the time of the accident in October 2006.  From October 2000 to April 2002, she worked at the head office of Success as a counter supervisor.  She quit the job and was re-employed in early 2006.  After having assisted in the establishment of the Branch in January 2006, she was employed to work there as its manageress and was the only staff of Success working in the Branch.

7.  The Branch was fitted with a kitchen, in much the same way as one finds in small residential flats in Hong Kong.  The kitchen was equipped with two hanging cabinets, one on each end of the wall.  The top of the cabinet was 8 feet above the floor.  There was a shelf inside dividing the cabinet into two portions horizontally.  The base of the upper half (“the upper shelf”) was 6 feet 7 inches above the floor.  The cabinet was 18 inches wide and 12 inches deep.  Madam Fong is 5 feet 3 inches tall.  The cabinet was not as deep as the marble counter top underneath it where the sink was but was recessed by about 4 to 6 inches from the edge of the counter top.  A tall rubbish bin was placed against the wall in front of the sink.

8.  On the day of the accident, at about 6:15 pm, Madam Fong was taking out some canned food stored in the upper shelf to prepare dinner for some maids who would return to the Branch after attending interviews by Success’ clients.  The cans she wanted to retrieve were placed deep inside and the upper shelf was filled with miscellaneous stuff.  To reach the cans, she stood on one of the 8 plastic stools she had purchased for the overseas helpers as dining chairs.  The stool was about 18 inches high with a square seat measuring 10.75 inches on one side.  Madam Fong was wearing flat footwear.  She did not remove the bin so that the stool could be placed right in front of the cabinet, as she had other things to do and was in a hurry.  She stood tiptoe on the stool and leaned forward, stretching her left hand upwards and forwards to reach and grip the cans, and holding onto the right side of the cabinet with her right hand.  Just when she managed to touch a can, the stool suddenly became unstable.  She lost her balance and fell over.  Her back and right arm bumped against the door of the kitchen and she landed on her buttocks on the floor.  The stool toppled over.  There was no witness to the accident.

The judgment below

9.  Madam Fong’s case on liability boiled down to one substantive complaint, namely, that Success had failed to make available for her use an A-shaped stepladder, leaving her with no choice but to use one of the plastic stools.

10.  She gave evidence that the stool was too light and not sturdy enough for her to stand on.  She had stood on the stools a number of times before and thought they were not sufficiently sturdy to bear her weight.  She claimed that she had on 2 previous occasions specifically requested Success’ director Lau Lai Sze Wendy to buy a ladder for the Branch but Madam Lau turned down her requests.  Madam Lau denied these requests were ever made.

11.  The judge decided that on a proper analysis, it was not necessary to resolve the disputes whether Madam Fong had specifically requested Madam Lau to provide her with an A-shaped step stepladder, or whether Madam Fong could or should have purchased one herself, if one be needed, given that she was instructed by Madam Lau to purchase, and she did purchase, all the necessary furniture and equipment for the Branch when Madam Fong helped to set it up.

12.  The judge held that as the kitchen was fitted with hanging cabinets, Success must have foreseen that these cabinets would be used for storage by the persons it deployed to work there or those it permitted to stay there and that Madam Fong would sometimes have to access the cabinets.  The question determinative of liability was whether Madam Fong did or did not have a safe or safer means of accessing the hanging cabinets.

13.  The judge answered this question in the affirmative and held that liability was not established.  I quote from the relevant parts of the judgment:

“36. In the instant case, given Madam Fong’s evidence that she knew from previous use of the Stools for the same purpose that they were not sturdy, she was asked why she chose to stand on the Stool. Madam Fong’s answer was that she felt that she had no choice because Madam Wendy Lau had refused to buy her an A‑shaped stepladder. That could not be right as it transpired in the course of Madam Fong’s testimony under cross‑examination that, not surprisingly, the Stools were not the only chairs at the Branch. There were in fact at least 5 other four-legged chairs (“Guest Chairs”) which Madam Fong herself had purchased for the Branch for the use of clients and other visitors. The Guest Chairs were made of metal and thus much heavier and sturdier than the Stools. Madam Fong confirmed that they were movable. When questioned why she did not use one of the Guest Chairs instead, Madam Fong just said that she would have to move it from where the Guest Chairs were kept in the office area through the glass door of the office and then a corridor before getting to the Kitchen. The impression that I got was that the Stools were handier. In my view, the slight “inconvenience” (if one may call it that) perceived by Madam Fong to be involved in moving one of the Guest Chairs to the Kitchen was no excuse for her to opt for what she herself suspected to be an unstable means of access and support. Even if she had been provided with a ladder, that device would not have been placed in front of the Shelf at all times. It would have been stored in some corner at the Branch. Madam Fong would still have had to take it out from the place of storage, move it to the Kitchen and open it before she could step on the same.

…

38. Another point that was taken by Mr Wong [who appeared for Madam Fong here and below] was the lack of evidence of a system to remind Madam Fong “to stand on a safe equipment” to avoid falling. I refer to Winter [Winter v Cardiff Rural District Council [1950] 1 All E R 819 at 822H to 823A and the abovementioned cases applying it [Cheung Suk Wai v Attorney General [1996] 4 HKC 288 at 296B to H; Tsang Yin Yuk v Nini Maternity Fashion Co Ltd, HCPI 981/2004, 28 April 2006; Chan Wai Ming v Tai Lee Café & Cake Shop, DCPI 1039/2006, 7 May 2007 at paras 20, 34 and 35]. The retrieval of items stored in the Shelf was not, on any view, complicated, difficult or dangerous in respect of which any instructions would be required. It is such an everyday act that one would often be performing it outside the work context, e.g. at home. An adult employee, particularly, one of Madam Fong’s maturity, experience, position and job responsibilities, could certainly be trusted to have sufficient common sense to decide how she could perform this task safely. …”.

This appeal

14.  Mr Wong Chi Kwong submitted on Madam Fong’s behalf that the judge had erred in law in implicitly finding that Success had no duty to provide a safe system of work for its employee.  Specifically, Success should have given instructions to Madam Fong that if she wanted to access the hanging cabinets, she should not stand on a plastic stool but should use a guest chair or something sufficiently sturdy to bear her weight.  The judge had failed to have regard to the principle that the duty of an employer towards his employee to take reasonable care to provide a safe place of work and a safe system of work is personal and non-delegable and the employer could not expect the employee to discharge his duty of care for him (Tsang Chung Wan v Li Ming & Ors [1998] 2 HKLRD 354 at 360J to 361B).  In finding that Madam Fong could be trusted to have sufficient common sense to decide how she could perform the task in question safely, the judge had implicitly shifted the duty to Madam Fong to take care of her own safety and had erred in law in so finding, bearing in mind that Success was under a personal and non-delegable duty to provide her with a safe system of work.  And even if an adult employee of Madam Fong’s maturity, experience, position and job responsibilities could be trusted to have sufficient common sense to decide how she could perform the task safely, this would only have a bearing on contributory negligence and could not be used to negative the liability of Success altogether.

15.  Mr Wong also contended it was inherently dangerous to climb up to the hanging cabinet to retrieve items.  He further submitted that the judge should have resolved the dispute whether Madam Fong had specifically asked Madam Lau to provide her with a stepladder because if the requests for a stepladder had been made and were refused, Success could not have relied on the suggestion that the guest chairs could have been used to absolve itself from its duty to provide suitable equipment to Madam Fong.

16.  I reject all of Mr Wong’s arguments.

17.  There is no quarrel with the principle that an employer’s duty to provide a safe system of work is a personal and non-delegable duty.  It was not the holding of the judge that where an employer is under an obligation to provide a safe system of work, such a duty could be shifted to the employee so that the employee could be expected to discharge this duty of providing a safe system of work for the employer.  The general principle on the duty to prescribe a safe system of work may be found in this passage in Charlesworth & Percy on Negligence, 12^th ed, para 11-67:

“It is a question of fact whether or not there is need for a system of work to be prescribed in any given circumstances. In deciding it, regard ought to be had to the nature of the work, that is whether properly it requires careful organisation and supervision, in the interests of safety of all those persons carrying it out; or it can be left by a prudent employer confidently to the care of the particular man on the spot to do it reasonably safely. There was no failure to provide a safe system where an employee was faced with a “one-off” task requiring the exercise of common sense and it was difficult to see what relevant instruction could have been given to him. But an employer is under a duty to prescribe a system of work, even where the operation is a single one, if it is necessary in the interests of safety.”

18.  I note also that the last sentence in this passage in an earlier edition of this work was quoted by the Court of Final Appeal in Cathay Pacific Airways Ltd v Wong Sau Lai (2006) 9 HKCFAR 371 at para 15, a case relied on by Mr Wong to contend that a system of work should be devised by Success regarding the retrieval of items from the hanging cabinets.

19.  As the passage quoted has made clear, it is a question of fact in each case whether it is necessary for the employer to devise a system of work for the task in hand.  The judge decided that in the circumstances of this case, the need for a system of work to be prescribed was not made out.  In paragraph 38 of the judgment quoted above, the judge referred to Winter v Cardiff Rural District Council and some of the cases in Hong Kong that applied this case.  They were all situations where the court held on the facts that the operation was simple and it was reasonable that the employee could be trusted to exercise his common sense to carry out the operation without the need for the employer to prescribe a system of work or give specific instruction or advice how the task should be done.

20.  The operation in Cheung Suk Wai v Attorney General was to put bags of refuse into refuse bins.  It was held that it was for the cleaning worker to decide on how to carry out the operation in a way most suitable to her physical ability, including the weight of the bags she should carry at one time.  In Tsang Yin Yuk v Nini Maternity Fashion Co Ltd, the shopkeeper stood on a stool to push a bag of clothing onto a shelf which was 4 feet deep.  It was held that the task of putting bags containing clothing onto the shelf was not inherently dangerous, that the decision of how this should be done had to be taken frequently, and it was reasonable and natural that the decision be left to the employee on the spot, especially in light of the instruction given not to overfill the bags.  In Chan Wai Ming v Tai Lee Café & Cake Shop, a chef tilted a heavy pot of boiled soup to pour the contents into a container, instead of using a ladle.  The court held that this was a simple task that a chef of the plaintiff’s experience should require no guidance.  Ng Kong v Golden Caterers Ltd, HCPI 206/2004, 3 February 2005, cited by the judge in the earlier parts of the judgment, was another case concerning a chef, who tried to pull a plate of fish out of a steaming oven, which he had done many times.  The plaintiff complained that a stool was not provided for his use so he had to stand tiptoe.  The judge found that a stool was provided but the plaintiff did not use it as it was handier to do without it and further observed that the plaintiff must know without specific instruction if he found he could not reach or comfortably reach a certain height required for his work and it was all a matter of common sense.

21.  The judge was correct in holding that in the circumstances of this case, there was no need for the employer to prescribe a safe system of work or give specific advice for such an everyday act that could reasonably be trusted to the common sense of the employee to carry out the task safely.  The retrieval of items on the upper shelf was simply not an inherently dangerous act, as contended by Mr Wong.  Nor is there any merit in his contention that the judge must resolve the dispute whether Madam Fong had requested for a stepladder and was turned down, for the reasons given in paras 36 and 38 of the judgment that I have quoted earlier.

22.  For the above reasons, we dismissed Madam Fong’s appeal with costs to the defendant.  As she is legally aided, we ordered that her costs be taxed in accordance with the Legal Aid Regulations.

Hon Barma JA:

23.  I agree with the Reasons for Judgment of Kwan JA.