NG KONG v. GOLDEN CATERERS LTD

HCPI 206/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 206 OF 2004

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J U D G M E N T

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Introduction

1.  This is an action brought by the Plaintiff against the defendant, his previous employer, for damages for personal injury sustained by him during his course of work with the defendant.

The facts

2.  The Plaintiff was born in mainland China in 1974.  He received secondary school education in the mainland.  He came to Hong Kong in 1993.  It appears that since coming from the mainland, the Plaintiff’s main job and working experience has always been as a cook.  However he received no formal training as a cook.   All his training and experience were on job training and experience.  

3.  The evidence on the training and working experience of the Plaintiff is not very clear.  It appears that he started off by being an apprentice in various restaurants for 3 years.  Before joining the Defendant he also had experience as an assistant cook in 2 restaurants.  While still at the stage of learning the trade, he had been working in some 10 restaurants.  However not all these 10 restaurants were Chinese restaurants serving Chinese food.  About 2 or 3 restaurants he had worked in were café type.

4.  From the information supplied by the Plaintiff in his application for job with the Defendant, it is clear that between June 1997 to June 1998, the Plaintiff was working as a cook or chef with the duties of a “上什(Sheung Jab)” in a restaurant at Tsing Yi.  Also between June 1998 to June 2000 he likewise worked as a “上什 (Sheung Jab)” in another restaurant called Hung Fook Restaurant.  “上什(Sheung Jab)” is a term used in the trade meaning the chef having the duties of preparing food using mainly the steaming process.  Thus it would be the duties of the “上什(Sheung Jab)” to steam fish and to prepare soup for the use of other chefs in other sections of the kitchen for cooking. 

5.  The Defendant operated the Golden Restaurant which was a Chinese Restaurant.  Mr. Yuen was in charge of the operation of the kitchen of the Defendant’s restaurant since 2000.  I accept the evidence from Mr. Yuen of the Defendant that in March 2001, the Defendant was in short of a上什 (Sheung Jab) in its kitchen.   Mr. Yuen contacted the Plaintiff for the job and had an interview with the Plaintiff.  In fact the Plaintiff was not new to Mr. Yuen or the Defendant’s restaurant.  In the past, the Plaintiff had worked in the Defendant’s kitchen for a brief period of about half a month in the section of frying food.  During the interview the Plaintiff told Mr. Yuen that he had had a number of years of experience in working in the kitchens of restaurants and he was familiar with the utensils, equipments, the layout and fittings of kitchen and further he had a few years of experience working as a上什(Sheung Jab).  Mr. Yuen thought that the Plaintiff had met all the Defendant’s requirements and after a few days, he told the Plaintiff that he was offered the job.  I also find that on the first day of the Plaintiff’s reporting to duties, Mr. Yuen showed the Plaintiff round the kitchen and explained to the Plaintiff the layout and operation of the Defendant’s kitchen.  Mr. Yuen also told the Plaintiff his duties and the Plaintiff indicated to Mr. Yuen that he was quite familiar with the operation of the steaming cabinet as he had had experience in the same kind of work before.

6.  I find that Mr. Yuen must have been impressed by the experience of the Plaintiff in discharging the duties of a上什(Sheung Jab) in the kitchen of a Chinese restaurant.  Apart from giving him a general introductory tour outlined above, neither Mr. Yuen nor any other person from the Defendant had given the Plaintiff any instruction on how to discharge his duties.  In particular the Plaintiff was not told how to steam food, how to take steamed dishes out of the steaming cabinet and what posture the Plaintiff should adopt in taking out the dish from the steam cabinet and placing it on a table for further preparation.

7.  The Defendant’s kitchen was not a very big one.  In 2002 the Defendant only employed 13 workers in its kitchen.  The Plaintiff was the only one employed as a上什(Sheung Jab) in the section of steaming.  Amongst the persons employed there were 2 apprentice cooks who would be available to give assistance to all sections which needed their help.  There was also one person whose task was to act as the relief worker to stand in the place of the worker who was on leave or was otherwise unable to attend work for one reason or another.   I was told that in fact the number of workers employed in the kitchen currently was reduced to only 12.

8.  It appeared that at one point of time before 1 July 2000, the date when Mr. Yuen first took up his duties as being the person in charge of the Defendant’s kitchen operation, the Defendant employed 2 workers to work as上什(Sheung Jab) in the steaming section of its kitchen.  There was however no evidence as to how the 2 would divide their work.  I accept the evidence of Mr. Yuen that at the time of his taking over to be the person in charge of the kitchen and since that time, the Defendant has always employed only one person as上什(Sheung Jab).

9.  The steaming section of the Defendant’s kitchen was equipped with a steam cabinet for steaming food.  It is quite common for kitchens of Chinese restaurants to be equipped with such cabinets.  The Defendant’s steaming cabinet consisted of 6 steaming ovens arranged in 3 levels with 2 at each level.  The lowest level ovens would be at the height of an ordinary table.  There was a ledge sticking out at about the oven floor level of the lowest level of the ovens.  There was no agreement or evidence on the purpose of this ledge nor was there any evidence on its width.  From the photograph adduced in evidence, having regard to the known dimensions on other parts of the cabinet, I would estimate the width of the ledge to be about 3 inches wide.  The whole cabinet was agreed to be 74 inches high.  Each steaming oven had a door opening downward so that when the door was fully open, it could act as a slide at about the same level as the floor of the oven inside so that the steamed dish could be pulled and slided out from the interior of the oven.   It is agreed by the parties that the steaming oven at the top level of the cabinet had an internal clearance of 9 inches, and that when the door of this oven was fully open to act as a slide or an extension of the floor of the oven, the slide was 64 inches above the level of the floor in front of the cabinet.

10.  Just opposite to the steam cabinet and across an aisle was a table which I would infer to be intended for use for the preparation of food.  The aisle was 34 inches wide, which Mr. Yuen said and I accept his evidence, was a standard width for such passage in the kitchen of a restaurant.  This aisle was also the place where the上什(Sheung Jab) would be standing when using the steam cabinet or preparing the dishes placed on the table opposite to it. 

11.  At about 2.30 p.m. on 23 May 2002, the Plaintiff was asked to steam a fish.  He put the fish on a plate and put it into a steaming oven on the top level of the cabinet.  I accept his evidence that at that time, it was not feasible to use any lower ovens because they were all occupied.   From the totality of the evidence before me, I find that the plate together with the fish and other things on top would weigh about 6 pounds. When time for steaming was up, he opened the door of the steaming oven and took the plate with the fish on it out from the oven.  The Plaintiff was 5 feet 5.5 inches tall.  Hence to take the plate out, he had to raise his 2 arms so that his hands were at about the level of his forehead.   He held the plate with both hands.  To prevent being scalded by the hot plate, he used 2 pieces of towels to insulate his hands from the plate.   He then pulled the plate out from the interior floor of the oven.   He said that because of the height of the steaming oven he used, he had to tip his toes to pull the plate out from the oven.  After he pulled out the plate out, he lowered his heels to floor level.  He then began to turn his body to his right intending to turn 180 degree round to place the plate with the fish on it onto the table opposite to the steam cabinet.  As he had turned his body for about 90 degree so that his head was facing a direction alongside with the edge of the table and the frontage of the steam cabinet, he felt a great pain at his lower back.  When he felt the pain he had merely moved his body and he was just about to move his legs to complete the turn.  The joint medical report of the Plaintiff’s and the Defendant’s doctors showed that the Plaintiff suffered from a sprained back injury.  I find that it was at this point of time when the Plaintiff felt the pain that the Plaintiff suffered an injury to his lower back. 

12.  I would like to mention that I make the above finding on how the injury occurred based not only from the Plaintiff’s own statement and his oral evidence but also on the demonstration given by the Plaintiff’s solicitor during the Plaintiff’s opening and also by the Plaintiff himself in the course of his evidence. 

13.  I also find that in the 14 months of employment with the Defendant as上什(Sheung Jab), the Plaintiff would have used the top level of steam ovens many times for steaming fish, and this operation of taking a steamed fish out from the oven and then putting it on the table opposite to the cabinet had been done by him on numerous occasions before.  The plate itself weighed about 4 pounds, and the fish and other ingredient would weigh about 2 pounds.  This would be the sort of normal weight for fish served in a restaurant.  Hence I am also prepared to find that on many previous occasions, the weight of the plate and the fish he took out from the steaming oven were similar to the one he handled on 23 May 2002.

14.  After the Plaintiff was struck by the pain, he told his superior, Mr. Yuen that he was not feeling well and had to see a doctor.  There was a dispute on whether he actually also told Mr. Yuen that he had sprained his back or that he had pain at his lower back.  Mr. Yuen gave him leave to see a doctor.  The Plaintiff went to the accident and emergency department of the Queen Mary Hospital and he was diagnosed of having lower back pain and was given a certificate for sick leave until 26 May 2002.  The Plaintiff then went back to see Mr. Yuen and gave Mr. Yuen his sick leave certificate.  Again there was a dispute on facts between the parties as to whether at that time Mr. Yuen was told by the Plaintiff of the details of his injury.  According to the Plaintiff, he told Mr Yuen the details of his problem.  According to Mr. Yuen he asked the Plaintiff as to what was wrong with him but the Plaintiff simply told him that he did not feel well and was given sick leave and then the Plaintiff turned round and went off.  Mr. Yuen did not notice anything wrong with the Plaintiff then.   Although it was stated in the sick leave certificate that the Plaintiff was suffering from “Low Back Pain”, Mr. Yuen who could not read English did not realize that that was the Plaintiff’s problem.  He simply passed the certificate to the Defendant’s management.

15.  Counsel for the Plaintiff submitted that I should find that the Plaintiff did tell Mr. Yuen of his injury both before he went off to the Queen Mary Hospital and after his return.  He further submitted that I should find Mr. Yuen not to be a credible witness for he maintained in his evidence the contrary.   I am of the view that the issue as to whether the Plaintiff had in fact told the Defendant of the details of his injury or not is quite irrelevant to the issues that I have to decide today.  I am of the view that in all probabilities the Plaintiff would not have told Mr. Yuen of his pain at the back or the details of his injury when he asked for leave to see a doctor.  I accept the evidence of Mr. Yuen that the Plaintiff merely told him that he was not feeling well.  After all at that time, even the Plaintiff might not realize the seriousness of his injury.  According to him, he stayed behind a little while to tell the relief worker arranged by Mr. Yuen about the work required of the post before he went off to the hospital.   I do however find that Mr. Yuen must have asked the Plaintiff as to what was wrong with him when the Plaintiff returned with the certificate.  I am of the view that the Plaintiff must have told Mr. Yuen something about his discomfort or injury although Mr. Yuen might have forgotten about the details or that such details did not register with him at the time.  However having regard to all the evidence as a whole, I do not find that the failure of memory or the mistake made by Mr. Yuen on this small detail would affect his credibility as a witness.  In fact I find that in general, Mr. Yuen was a credible witness. 

16.  Since 23 May 2002, the Plaintiff had never been back to work with the Defendant again.  He was granted successive sick leaves from 23 May 2002 to 13 February 2004.   He returned to the Defendant on 19 February 2004.  A manager of the personnel department of the Defendant told him that the Defendant would dismiss him because he was no longer suitable for the job.  He had asked that the Defendant might arrange lighter duties to him.  The manager declined saying that the Defendant was afraid that he might be injured when bumping into something during his work. 

17.  On 11 August 2003, the Plaintiff took out an application in the District Court for employee compensation (DCEC 883/2003)on the ground that he had suffered from personal injury arising out of and in the course of his employment as an employee of the Defendant.  The Defendant consented to judgment on liability on 29 September 2003, and eventually the amount payable to him under the Employee Compensation Ordinance was assessed at HK$410,334.60.  This amount has been fully paid.

18.  In the present action, the Defendant did not admit that there was any accident resulting in the Plaintiff’s injury on 23 May 2002.  In the light of the judgment of in DCEC 883/2003, I hold that the Defendant is estopped from denying that there was an accident causing personal injury to the Plaintiff arising out of and in the course of the Plaintiff’s employment with the Defendant on 23 May 2002.  At any rate, even independent from the estoppel, I take the view that in the light of my finding set out above, the Plaintiff suffered form an injury arising out of and in the course of his employment with the Defendant on 23 May 2002.  Whether the incident could be properly called an accident is not material.   I would term it “accident” because I am of the view that the injury took place when neither the Plaintiff nor the Defendant would actually anticipate that to happen. 

The Plaintiff’s Claim

19.  The claim made by the Plaintiff in this action was based on breach of the implied term of the employment contract, negligence for breach of the common law duty of care and breach of the statutory duties under section 6 of the Occupational Safety and Health Ordinance (hereinafter called the “Ordinance”).

20.  It is common ground that under it is an implied term of the Plaintiff’s contract of employment with the Defendant that (a) the Defendant would take all reasonable precautions to ensure safety of the Plaintiff in the course of his employment; (b) the Defendant was to provide and maintain suitable and necessary plants and appliances to enable the Plaintiff to be safe while in the course of his employment and (c) the Defendant would have to provide and maintain a safe and proper system of work.  

21.  As regards the common law duty, I accept the Plaintiff’s submission that I should follow the formulation of the law by Cheung J in Lai Wah Wai v Castco Testing Centre Ltd. [1996] 2 HKC 44 at page 48F-I:

“The standard of an employer’s duty towards his employee is to see that reasonable care is taken; the scope of that duty extends to the provisions of safe fellow employees, safe equipment, safe place of work and access to it and a safe system of work.  (Wilsons and Clyde coal Co Ltd v English [1938] AC 57).  A system of work is the term used to describe:
(1)	the organization of the work;
(2)	the way in which it is intended the work shall be carried out;
(3)	the giving of adequate instructions (especially to inexperienced workers);
(4)	the sequence of event;
(5)	the taking of precautions for the safety of the workers and at what stage;
(6)	the number of such persons required to do the job;
(7)	the part to be taken by each of the various persons employed; and
(8)	the moment at which they shall perform their respect tasks.”

It is of importance to note that the overall duty is to exercise reasonable care.

22.  In the particulars given for breach of common law duty, the Plaintiff relied on the same incidents and particulars for the claim for breach of statutory duties.  On top of that the Plaintiff also relied on 4 other specific allegations of failures viz. failure to warn the Plaintiff of risk of injury, failure to give adequate instruction, failure to provide a standing stool for the Plaintiff to reach and to take the dish out from the steaming oven and failure to provide a steaming cabinet which is of a reasonable or lower height.  The Plaintiff further claimed that there was a failure to provide a safe place of work but from the answer to the request for further and better particulars on this claim, it is clear that all that the Plaintiff was alleging was (a) a failure to provide the necessary plant and appliances to ensure the safety of the Plaintiff, (b) the failure to provide the stool and a cabinet of reasonable and lower height.  Also from the particulars given in relation to the allegation of failure to provide a safe system of work, it is clear that the Plaintiff’s case in this respect was that there was (a) failure to give training and adequate instruction to the Plaintiff as to how dishes should be taken out from the top level steaming oven, (b) failure to warn the Plaintiff of the risk of injury when taking dishes from the top level of the steaming oven, (c) failure to provide proper supervision to the Plaintiff’s work to ensure his safety, (d) failure to make arrangement for ensuring the safety of the Plaintiff when using the steaming cabinet. 

23.  As regards the breach of statutory duty, the Plaintiff’s case was that there was a breach of the duty under each of the paragraphs (a) to (e) of s6(2) of the Occupational Safety and Health Ordinance.  It is important to note that the obligation imposed by the Ordinance was a qualified one in that the employer’s duty was to ensure so far as reasonably practicable the safety and health at work of all his employees.  Reasonableness and practicality would have to be considered in the connection with of each allegation of failure. 

24.  In approaching the question of whether there was any negligence or breach of the statutory duties here, it is important to bear in mind that the law does not require perfection.  The employer is not an insurer of his employee’s personal injury.  There is hardly any thing in the world which could not be better done with the benefit of hindsight.   An employer who has exercised such care reasonably expected from a careful employer is not to be found liable to his injured employee for negligence simply because after the event someone is able to make some extravagant suggestions of how things could be better arranged to avoid this particular accident.

Statutory Duties

25.  It is convenient for me to start with the claim for breach of statutory duties.

S6(2)(a)

26.  The claim is that the Defendant had failed to provide plant and system of work that are, so far as reasonably practical, safe and without risk.   While the Plaintiff had not identified what plant and what aspect of system of work he would refer to in his particulars of breach of section 6(2)(a), a reasonable reading of his pleading as a whole would lead anyone to conclude that (a) the plaintiff must be making the complaints against the steam cabinet and the lack of the stool as the deficiency in the plant, and (b) the Plaintiff must be referring to the same particulars of failure to provide a safe system of work in his allegation of breach of common law duty of care.

27.  In so far as the cabinet is concerned, the complaint was that it was too high so that the Plaintiff would have to tip toe when taking the dishes out from the steaming oven on the top level of the cabinet. 

28.  I accept the evidence of Mr. Yuen that the Defendant’s cabinet was not exceptionally high.  From his 30 years experience of working in the kitchens of various restaurants, the height of the steaming cabinets and the oven floor would vary but within a range of about 3 inches.  In the present case, the Plaintiff was 5 feet 5.5 inches tall, and he was not particularly tall or short amongst the local population.  The height of the floor of the top level steaming oven is such that he would have to raise his arms to just above the level of his forehead to take out the steamed dish.  There is no expert evidence to suggest that the height of the oven was not acceptable.  I do not find that there was anything wrong with the height of the Defendant’s steam cabinet. 

29.  I accept the Plaintiff’s evidence that he was on tiptoe when he reached the dish inside the oven.  Given his height and the height of the oven, I do not consider that it was a must that he had to stand on tiptoe.  However I do accept that the Plaintiff would find it more convenient to do so. 

30.  There was a dispute between the parties as to whether the Defendant had provided the Plaintiff with a stool for him to stand on when he found it necessary to do so.  Mr. Yuen’s evidence was that such stool was provided and it was normally placed underneath the table opposite to the steam cabinet.  A photograph of such stool was adduced in evidence and it would appear that someone before must have used the stool.  The Plaintiff however maintained that there was never any stool in the kitchen and at least he had never seen one.  

31.  The Plaintiff’s counsel submitted that I should reject the evidence of Mr. Yuen.  He submitted that if the stool was ever placed beneath the table and had been used, one should be able to find scratch marks on the tiles of the floor in the photograph.  I do not agree.  Even if there was some instances where the stool was pulled out from beneath the table to the middle of the aisle, I do not think that it is necessary the case that some visible scratch mark would be left on the floor.  Such suggestion was never put to Mr. Yuen.  In this respect, it is common ground that part of the Plaintiff’s duty was to prepare soup which was then put in a container containing about 20 pounds of soup.  The container containing the soup would then be put in another container for rice and the whole thing would be pulled along the floor of the same aisle to other positions in the kitchen.   The containers were made of stainless steel.   From the photos, there was no scratch mark left on the floor at all.   Thus I do not accept the argument that whenever anything made of metal was being pulled along the floor of the kitchen there was bound to be some scratch marks on the floor visible from the photos.

32.  I accept the evidence of Mr. Yuen on this point.  I find that the stool was provided and was normally placed underneath the table opposite to the steam cabinet such that if the Plaintiff would like to make use of it he could easily take out the stool to stand on.  I am of the view that the Plaintiff did not use the stool because he could manage without it and it was obviously handier to work without the stool.  At least he did not have to take the stool out and put it back again after use. 

33.  In the course of his evidence, the Plaintiff suggested that he had in the past asked the Defendant to supply heat resistant gloves so that the Plaintiff’s hands would be protected from being burnt when taking out the steamed dish from the steaming oven but the Defendant had failed to do so despite the Plaintiff’s express request.  The Defendant did not object to such evidence being led although there was no pleading to suggest that the failure to supply the requested gloves was an incidence of negligence or breach of duties.  Of course the evidence could also be relevant to the general issue as to the attitude of the Defendant over the question of comfort and safety of its employees.

34.  On this issue, I also accept the evidence of Mr. Yuen that in fact, the Defendant had provided both rubber gloves and cotton gloves for use by its employees.  Typically the worker would put on the rubber gloves first and then put the cotton gloves on top.  The rubber gloves would be sufficient for heat resistance purpose for use in the kitchen.  The purpose of the cotton gloves was to prevent slippery in the grip.  Plainly the Plaintiff did not find it necessary or convenient to use the gloves provided, as his evidence was that he used 2 pieces of towels to insulate his hands from the steamed dish when taking out the dish.

S6(2)(b)

35.  The Plaintiff also alleged that there was a breach of section 6(2)(b) of the Ordinance in failing to make arrangement for ensuring, so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage or transport of plant or substances.  However it is not clear as to what exactly was the Plaintiff’s case on this score.  From the evidence, the only thing which the Plaintiff had used, handled or transported and which could have any relevance to his injury was the handling or moving of the steamed dish from the steaming oven to the table behind him.   There was no movement, or storage or handling of any plant.   Even though it could be said that the Plaintiff had “handled” the steam cabinet, it is difficult to see how his handling of the steam cabinet could have any relevance to his injury in that he was only injured after he had taken the dish out from the oven and was turning his body round to put the dish on the table. 

36.  Furthermore it is entirely unclear as to how it was alleged that the Defendant had failed to make arrangement for ensuring the safety of the transport of the dish from the oven to the table.  The fact that somehow the Plaintiff got himself injured in the course of his moving the dish from the oven to the table does not mean that the Defendant must be negligent or must have failed to ensure his safety in moving the dish.   In fact I fail to see how there could be any other way of moving the dish from the oven to the table.  Certainly none had been suggested to me. 

37.  Accordingly I do not think that there was any breach of the obligation under section 6(2)(b) of the Ordinance.  In fact I would consider that it was a bit irresponsible for the Plaintiff’s lawyers to seek to rely on this ground.

S6(2)(c)

38.  The allegation was that there was a failure on the part of the Defendant to provide such information, instruction, training and supervision as may be necessary to ensure, so far as reasonably practicable, the safety and health of the Plaintiff at work.  There is no dispute that in fact the Defendant did not give the Plaintiff any specific instruction on the mode of operation of his work.  There was certainly no instruction given to the Plaintiff as to how to steam fish, how to put the fish into the steaming oven, how to take the dish out and how to move his body round to put the dish on the table for further preparation.  Furthermore although I am of the view that the Plaintiff must be aware of the existence of the stool and how it could be used, it is also common ground that the Defendant had not given any specific instruction that the Plaintiff was to use the stool when putting dishes into or taking dishes out of the steaming oven at the top level of the steam cabinet.   Also I am prepared to find that the Defendant had not told the Plaintiff specifically that he should use the rubber gloves and the cotton gloves when handling hot dishes, although I would consider that the Plaintiff must have seen how other people used the gloves to handle hot objects. 

39.  I would first start with the stool.  It must be plain to anyone that the stool was there to enable the kitchen worker to stand on when he found that he had to reach a height that he could not reach or comfortably reach.   The Plaintiff was employed as a上什(Sheung Jab) of some experience.  I would consider that even without any specific instruction the Plaintiff must know that he should use the stool if he found that he could not reach or comfortably reach a certain height required for his work.  This is a matter of common sense.  I consider that even an employee could be trusted to have some common sense in discharge of his duty.  I would not consider that there is any breach of s6(2)(c) or the common law duty of care in not specifically telling the Plaintiff that he must use the stool in reaching the top level steaming oven.

40.  At any rate, the Plaintiff’s height was that it was not a must that he should use the stool.  There was certainly no evidence, let alone expert evidence, to show that people of the Plaintiff’s height should step on a stool when taking dishes out from that top level oven.   In the present case, the Plaintiff could certainly reach the dish without the stool and he could even do so without standing on tip toe.  It is a matter of his own preference that he stood on tip toe. 

41.  Even assuming that the law does require the employer to instruct the Plaintiff to use the stool on the factual situation of the present case, I do not consider that the failure to instruct the Plaintiff to use the stool is relevant to the present case because plainly it is not the lack of height on the part of the Plaintiff that had caused his injury.  The evidence in this case is that the Plaintiff had already succeeded in getting the dish out from the oven and he had lowered his heels back onto the floor level before he started turning his body round.  It was only in the course of his turning his body that the injury took place.  There was no suggestion that somehow the fact that he had tiptoed and then lowered his heel back had contributed to the occurrence of his injury.   To put things in legal language, even there were negligence in not instructing the Plaintiff to use the stool, the Plaintiff had failed to show that the negligence had caused his injury.

42.  Thus the whole episode of the stool and the tiptoe was a red herring. 

43.  Again in so far as the use of the gloves is concerned, I do not consider that the lack of instruction regarding the use of the gloves is relevant here.  It is just common sense for someone with the Plaintiff’s experience in working as a上什(Sheung Jab) in a kitchen that he should protect himself from being burnt when handling anything hot and that the dish from the steaming oven was hot.  In fact the Plaintiff instead of using gloves used 2 pieces of towels for insulating the heat from the dish he had to take out from the oven.  He might have chosen the towels being they were more handy so that he did not have to put on2 pairs of gloves and took them off again after he put down the dish.  There was no suggestion that the use of the towels instead of the gloves would in any way cause his injury.   For instance, there was no suggestion that the use of the 2 towels was not sufficient to insulate the heat so that he had to turn his body quicker in order to put down the dish quicker and thus inflicting the injury on himself.   Again I find that the whole episode of the request for the gloves and the lack of instruction to use the gloves to be a red herring.

44.  What remains to be considered under this head is whether there was a breach of s6(2)(c) and the common law duty of care in not giving the Plaintiff instruction as to how he should take the dish from the oven to the table and in particular what should be his body posture when moving the dish.   In this respect, counsel for the Plaintiff drew my attention to some decided cases where the court held that the employer was negligent in failing to inform and instruct his employee on how the employee should go about in lifting a heavy object and employer’s failure to instruct was found to be a cause of the injury suffered by the employee when lifting a heavy object using a wrong posture.  So Chung Kwong v Ho Kuen & another [2000] HKLRD 241 and Lai Kam Wah v Wing & Kwong Company Limited  (HCPI 1131 of 2002) were amongst those cases cited by him. 

45.  I considered that the cases relied upon by the Plaintiff’s counsel are distinguishable.  First in those cases, the object to be lifted by the employee was a heavy object such that in order to carry out the lifting safely a particular posture or procedure for lifting was required.   There was clear expert evidence in those cases that the procedure and posture adopted by the worker was the wrong one and that resulted in his injury.  In the present case, there was no suggestion that the weight of the dish was excessive nor was there any suggestion that there should be a special way of turning one’s body when one was holding a dish of about 6 pounds.  Even if it was suggested that the Plaintiff’s injury must be due to his not adopting the correct posture in turning his body, I could not see how it could be said that any reasonable restaurant operator should have to give instruction to a chef as to how he should go about in carrying a dish of about 6 pounds and turn around to put the dish down on a table just behind him. 

46.  In the circumstances I do not find that there was a breach of s6(2)(c) or the common law duty of care in failing to give the Plaintiff any or any sufficient information or instruction. 

S6(2)(d)(i)

47.  The allegation was that the Defendant had failed to maintain the kitchen, being a work place under the Defendant’s control, in a condition that is, so far as reasonably practicable, safe and without risks to health.  No further particular was given as to what in fact were alleged to be the shortcomings of the Defendant’s kitchen.   I can find no evidence that there was any breach of this section.

S6(2)(e)

48.  The allegation was that the Defendant had failed to provide or maintain a working environment for the Plaintiff as its employee that is, so far as reasonably practicable, safe and without risks to health.  Again there was no particular given as to what in fact were alleged to be the shortcomings of the Defendant’s kitchen environment.  I can find no evidence of any breach of this section.

Common Law Duty

Statement of Claim paragraph 7(a) to (e)

49.  The particulars of negligence under the common law claim were set out in paragraph 7 of the Statement of Claim.  In so far as the Plaintiff’s would seek to rely on the same allegations as those relating to his claim for breach of statutory duties, I am of the view that his claim has not been made out for the same reasons that I have given above.

50.  In relation to the allegation that there was a breach of the common law duty in failing to warn the Plaintiff of the risk of injury when taking dishes from the top level of the steaming cabinet, I am of the view that in view of the fact that the Plaintiff was employed as an experienced  上什(Sheung Jab), there is really no duty or necessity to warn him of the risk of injury when taking dishes out from the steaming cabinet.  Further, the risk of injury associated with the act of taking dishes from the steam cabinet would obviously be those relating to the risk of being scalded or burnt. Thus even if there were such duty, the breach of such duty did not cause the injury to the Plaintiff.  In the present case, the injury took place when the Plaintiff had already taken the dish out from the steaming oven.  He was injured when he was turning his body with the dish in his hands.  I do not think that there is any duty on the part of an restaurant operator to instruct his employee chef how to hold a dish and turn round to put it on a table. 

51.  In relation to the suggestion that the steam cabinet provided was too high, my finding is that height of the steam cabinet was within the normal range.  It was certainly no too high for the Plaintiff.  Again as I have pointed out, it was not the height of the steaming oven which caused the Plaintiff’s injury.  

Statement of Claim paragraph 7(f)- safe place of work

52.  This is an allegation of failure to provide a safe place of work.  To a large extent this allegation overlapped with the allegation of breach of s6(2)(b) of the Ordinance which I have dealt with already.  

53.  In fact from the particulars given, this allegation only boiled down to an allegation that (a) there was a failure to provide the necessary plant and appliances to ensure the safety of the Plaintiff and (b) the failure to provide the stool and a cabinet of reasonable and lower height.    I have dealt with the criticism on the lack of the stool and the height of the cabinet else where already.

54.  In so far as the failure to provide the necessary plant and appliances is concerned, the particulars in the pleading did not specify what plant or appliance which the Defendant had failed to provide other than the stool.  In his final submission, counsel for the Plaintiff sought to argue that the Defendant should have provided another table to be put against the front edge of the steam cabinet so that when taking the dishes out from the steaming oven, the Plaintiff could just put the steamed dish onto this table and would not have to turn his body to reach the table at the opposite side of the aisle.  Apart from the pleading objection, such suggestion had never been put to Mr. Yuen, the Defendant’s supervisor at the kitchen.  I do not think that such suggestion was practical or viable.  While it may be true that if the Defendant should put a small table against the front edge of the steam cabinet that would safe the Plaintiff the trouble of making a turn, the presence of such table at the place suggested by the Plaintiff’s counsel would cause a lot of other problems, such as obstruction of the aisle and would surely give rise to a lot more criticisms and would also be a source of danger in other respect too. 

Statement of Claim paragraph 7(g) – safe system of work

55.  From the further and better particulars given, this allegation would boil down to failure in 4 respects and I will deal with them in turn.

56.  On the suggestion that the Defendant had failed to give training and adequate instruction as to how dishes should be taken out from the top level of the steaming cabinet, I have already given my view on this allegation elsewhere.  In any case, the injury had no causal relationship with the taking out of dishes from the steaming oven. 

57.  On the suggestion that the Defendant had failed to warn the Plaintiff of the risk of injury when taking dishes from the top level of the steaming cabinet, this is an allegation made under various heads and has also been dealt with else where in this judgment.

58.  On the allegation that the Defendant had failed to provide sufficient supervision to the work of the Plaintiff to ensure the safety of the Plaintiff’s work, I fail to see what supervision the Defendant ought to have given which would have the effect of avoiding the Plaintiff’s injury. 

59.  Finally the Plaintiff also alleged that the Defendant had failed to make arrangements for ensuring the safety of the Plaintiff when using the steaming cabinet.  I fail to see what arrangement that the Plaintiff would say that the Defendant should have made.  At any rate, this allegation was a red herring because the Plaintiff was not injured when using the steaming cabinet.  He was injured when he was turning his body round to put down a dish. 

Statement of Claim paragraph 7(h) & (i) – reasonable care for the Plaintiff’s safety & not to expose Plaintiff to unnecessary risk

60.  The particulars relied upon by the Plaintiff were those under paragraph 7(f) & (g).  There was in fact nothing new about this plea.  For the same reasons given above, the Plaintiff’s claim was not substantiated.

Others

61.  In his final submission, the Plaintiff’s counsel sought to argue that the Defendant was negligent in failing to employ sufficient number of staff for the steaming section of the kitchen.  It was suggested that if there was another assistant chef working at the same section, then the Plaintiff could have just handed over the dish to that assistant after he had taken the dish out from the steaming oven and before he would be required to turn round to put the dish down to the table opposite to the steam cabinet.  The submission is that since failure to have the requisite number of staff for the job could be a facet of the breach of duty to provide a safe system of work, counsel submitted that such argument was open to him even though such allegation was not found in the particulars given on the failure to provide a safe system of work. 

62.  I consider that as a matter of pleading such argument was not open to the Plaintiff.  At any rate, the argument is a bad one.  There is no evidence to suggest that the steaming section should have more than one chef.  Even though it was vaguely suggested that some years ago, the Defendant had employed 2 persons to work in this section, it did not mean that there was a shortage of man power in the section in May 2002 when the Plaintiff was injured.  Moreover, I am of the view that the suggestion that there should be a system of work whereby one person is to hand over a steamed dish fresh from the steaming oven to another person to put it down on a table is wholly impractical and is a recipe for accident.  

Res Ipsa Loquitur

63.  There is no presumption of law that an employer is negligent whenever his employee is injured in the course of his employment.   There is not even such presumption of fact.  The doctrine of res ipsa Lowuitur is applicable only if the factual situation is such that the injury would not have occurred but for someone’s negligence.  I do not consider that the maxim res ipsa loquitur would have any application to the facts of the present case.  From the clear evidence as to how the Plaintiff got injured, I do not see how one can draw any inference that the injury would not have occurred but for some negligence on the part of the Defendant.

Implied terms

64.  The claim in contract overlapped with the claim in tort.  I do not consider that there was any breach of the implied terms.

Conclusion on liability

65.  There is a myth in the mind of certain people that the Court is bound to find liability against the employer whenever there is a claim by an employee for personal injury arising in the course of his employment.  Such myth was probably built on the misguided belief that any deficiency in the case would be made up by judicial sympathy for the injured employee and that somehow the court should bend over backwards to find a reason for finding liability against the employer.  I do not think that the court should take this approach.  While I have considerable sympathy for the Plaintiff, my decision is that I would dismiss the Plaintiff’s claim.  The Plaintiff has failed to show negligence or breach of statutory duties or breach of contract.  Further to the extent that it might be said that the Defendant had been at fault, the Plaintiff had failed to show that his injury was caused by any of the alleged faults of the Defendant. 

Contributory Negligence

66.  As my conclusion is that the Plaintiff has failed to show any negligence or breach of statutory duties or breach of contract, the question of contributory negligence on the part of the Plaintiff would not arise.

67.  However if I am wrong in my conclusion that the Defendant was not in breach of duty in not instructing the Plaintiff to use the stool or in not providing the Plaintiff with a steam cabinet of lower height, I agree with the Defendant’s submission that the Plaintiff was guilty of contributory negligence in failing to use the stool actually provided.  In view of the Plaintiff’s experience and the fact that it must be obvious to him that if the steaming oven was too high for him, he should make use of the stool provided, I would hold that the Plaintiff was guilty of 50% contributory negligence in this case.

68.   I would add that from the evidence of how the injury occurred, it appeared that there were other probable reasons for saying that the Plaintiff had contributed to his own injury.  For instance, he must be turning his trunk too vigorously at the time or that he had failed to synchronize the movement of his feet with the turn of his body.  However since none of this was pleaded in the Defendant’s particulars of contributory negligence, I should not have regard to them.   If I should have regard to them, I would have come to the conclusion that the Defendant was wholly to be blamed for his injury and would be guilty of 100% contributory negligence. 

Quantum

69.  In accordance with the usual practice, I will also give my view on the quantum of damages just in case I am wrong on the question of liability.  The assessment given below is on the assumption that the Defendant was wholly liable and the Plaintiff was not guilty of any contributory negligence.

70.  After the Plaintiff was injured, he asked for leave to see a doctor.  He attended the accident and emergency department of the Queen Mary Hospital.  He was diagnosed to be suffering from lower back pain and was given conservative treatment.  He was discharged on the same day.  He was given sick leave until 26 May 2002.  In fact the Plaintiff never attended work again.  He was given successive sick leaves until 13 February 2004. 

71.  The Plaintiff was re-admitted to the Queen Mary Hospital on 27 May 2002 because of exacerbation of back pain.  He was again discharged with analgesic. 

72.  There was not much progress on the Plaintiff’s recovery.  He was readmitted to Queen Mary Hospital again on 2 June 2002 and 13 June 2002. 

73.  The finding by the doctors at the Queen Mary Hospital was that there was tenderness at the lower left paraspinal muscles.  Flexion of the spine was limited and there was limitation of straight leg raising of his left lower limb.  There was no loss or power or sensory.  He was diagnosed to be suffering from sciatica.

74.  Owing to the Plaintiff’s complaint about persistent back pain, he was referred to receive physiotherapy treatment at the Yan Chai Hospital for the period from 8 June 2002 to 14 August 2002.  On 27 June 2002, the Plaintiff was also referred to the general outpatient department of the Queen Mary Hospital for further follow up.  Between 5 July 2002 to 20 August 2002, the Plaintiff also attended the Princess Margaret Hospital for treatment.

75.  On 21 August 2002 the Plaintiff was admitted to the Department of Orthopaedics & Traumatology (O & T) of the Princess Margaret Hospital because of persistent low back pain and numbness and weakness of his left lower limb.  He received physiotherapy treatment there and was discharged on 27 August 2002.  The Plaintiff main problem was left sciatica.  Since his discharge, he continued to receive occupational therapy and physiotherapy. 

76.  On 30 June 2003, the Plaintiff was again admitted to the O & T of the Princess Margaret Hospital because of exacerbation of back pain and left sciatica and was discharged on 5 July after medications and physiotherapy treatment.  His last follow up treatment was on 17 July 2003.

77.  When the Plaintiff was examined by the doctors appointed by both parties in September 2004, he still complained of some back pain on and off.  The pain would increase during change of weather.  His walking and sitting tolerance was about 30 minutes.  He could support himself on any one leg and on his toes.  He could also squat and rise normally with a slightly wider base but with some back pain on squatting.  The result of straight raising test of his legs showed that there was some limitation in the movement of his left leg. 

78.  I can observe that even during the trial, he walks with a very slight limp, but he could stand normally.  He sat in court through out the trial and did not appear to be suffering from any discomfort. 

79.  The joint examination by the doctors of both parties on 10 September 2004 revealed that there was no deformity of the Plaintiff’s back.  There was some tenderness over the low back and left paraspinal area but with no muscle spasm.  The doctors also commented that the MRI test conducted at Queen Mary Hospital and Princess Margaret Hospital revealed that the Plaintiff had been suffering from degeneration of multiple discs and these discs generation was a natural occurring condition of wear and tear and was not caused by the accident. 

80.  I accept the evidence of Dr. Cheng (the Defendant’s doctor) that the degenerative condition was a pre-existing condition.  I also accept that when he was examined by Dr. Cheng on 14 July 2003, he admitted to Dr. Cheng that for 2 weeks before the accident, he had some minor back pain although he was able to continue to work.  In the premises, I also accept Dr. Cheng’s view that it was probable that the Plaintiff was already suffering from some aches and pains due to the degenerative changes, the so-call aches and pains of daily life.  The spraining of the back probably aggravated the symptoms.

81.  On the Plaintiff’s condition the joint comment of the doctors was as follows:

“The present condition of Ng is that the back injury of sprain is now over 2 years.  There are some residue subjective back pain and stiffness and left leg pain.  There is also some subjective weakness.  There are no objective positive findings of any radiological deficit.  There is no bony injury.  …We thought that Ng probably has reached a state of maximum medical improvement.  The prognosis is good.  Ng is a young man.  With time and resumption of normal activities there is likely to be further improvement.  There is no need for any continuous treatment.  There may be a requirement of treatment on a need-to basis.”

82.  I accept the joint assessment of the doctors that the Plaintiff had suffered from 5% whole person impairment, and the loss of earning capacity, in accordance with the Employee Compensation Ordinance is 5% to 8%.

83.  The doctors considered that the reasonable period for sick leave for the Plaintiff’s case was up to 12 months, although in fact the Plaintiff was given sick leave right up to 13 February 2004, i.e. 20 months and 20 days. 

84.  Counsel for the Defendant submitted that in view of the Plaintiff’s pre-existing problem, his pain and his loss of income would almost certainly have occurred at some stage of his life in any event.  He referred to the decision of the Court of Appeal in Chan Kam Hoi v Drag-ages et Travaux Publics [1998] 2 HKLRD 958.  He submitted that the damages awarded should be reduced to take into account of the probability of the Plaintiff suffering from the pain developed from his pre-existing condition and his loss of income because of the natural progression of his pre-existing condition.  He thus submitted that the damages for PSLA should be reduced by 90%.  Likewise he submitted that when I assess the loss of earning, I should do so on the basis that in about 17 months time from the accident, the Plaintiff would develop into his current state even without the accident. 

85.  The Plaintiff’s counsel on the other hand submitted that I should follow the example Suffiad J in Lai Ching v Wong Chiu Kwai trading as Wing Lai (1996 No. PI 1192) and simply make an assessment of PSLA taking into account of the pre-existing condition and there should not be any reduction of the award for loss of earning reflecting the pre-existing condition because the situation here would fall within the thin skull rule.

86.  The scope and operation of the thin skull rule was explained by Edmund Davis J in Love v Port of London Authority [1959] 2 Lloyd’s Rep 541 at 545 :

“To return to the plaintiff’s condition from the accident up to today, one has to remember, of course, that the defendants must take the plaintiff as they find him, that is to say, with his already vulnerable personality.  Accordingly, as far as special damages are concerned; (a) if, although a degree of neurosis because of the heart condition alone would have persisted and probably progressed even had there been no accident, such neurosis would not have prevented the plaintiff from working, and (b) if the plaintiff’s failure to work is attributable at least in part of neurosis caused by the accident, meaning thereby that but for his neurosis there would have been no absence from work, the plaintiff is entitled to be compensated in full for financial losses flowing from such absence, even though there was an accompaniment of hear disease, and neurosis caused thereby.  For example, and taking Dr. Edwards’s rough percentages, if what we may call the 70% heart neurosis would not have prevented the Plaintiff working; but the addition of the 30% accident neurosis produced total incapacity, the defendants have to recompense the plaintiff for all special damages arising from the 100% neurosis which developed from these two causes.  Conversely where the interruption in work would have occurred in any event, being caused by the progress of and crisis in the heart condition which has nothing to do with the accident, no special damages are recoverable.”

87.  I would agree that if the Plaintiff’s own pre-existing condition was such that it would not have prevented the Plaintiff’s from working unless the Plaintiff’s condition was aggravated by the accident, then the thin skull rule would apply and the Defendant must take the Plaintiff as he finds him and the Defendant is liable to compensate the Plaintiff in full.  However if the Plaintiff’s pre-existing condition is such that the interruption of work would have occurred in any event even without the accident, then no damages would be recoverable.  Of course, very often the position would be that the interruption would probably occur some day but the accident had accelerated the interruption, then it would appear to me that the court will have to take into account the effect of the pre-existing condition as in the case of Chan Kam Hoi v Drag-ages et Travaux Publics.

88.  In the present case, although there was evidence that the Plaintiff has been suffering from some degeneration of his lumbar discs, there was no cogent medical evidence to show that at what time within the normal working life of the Plaintiff, the degeneration would develop to such extent that the Plaintiff would have to stop work.  However the way that the Plaintiff got injured in the present case would indicate that the Plaintiff’s condition is such that he could suffer injury leading to great pain very easily.  I have to take into account that even though he did not suffer from this accident, in conducting his daily affairs, he stood a high chance of suffering the same if not more severe injury or pain.  I think I have to take this into account in assessing the future loss of earning as a factor of the vicissitudes of life. 

89.  I will adopt what Mortimer VP in Chan Kam Hoi v Drag-ages et Travaux Publics would describe as the conventional method in approach to the assessment of damages.

90.  For PSLA having regard to the Plaintiff’s pre-existing condition, I would assess the damages at $200,000.

91.  As to the loss of earning, although the joint opinion of the medical experts from both sides was that sick leave for 12 months was reasonable, I do not think that it was unreasonable for the Plaintiff not to work during the time when he was in fact granted sick leave by various medical practitioners.  I would thus allow him damages for the loss of total income during the period covered by the sick leave certificates.  It was agreed that the Plaintiff’s average earning in the 12 months before the accident was $15,333.33 per month.  On top of that he would be entitled to the 5% employer’s MPF contribution, thus making his actual income package to be $16,100 per month. 

92.  In relation to the period after the sick leave, there was a divergence between in the views of the medical experts on the type of work that the Plaintiff would be able to do.  Dr. Wong for the Plaintiff was of the opinion that it was unlikely that the Plaintiff would be able to resume his previous job.  He was of the opinion that the sort of work which would be suitable for the Plaintiff would be work which would not require frequent bending or heavy lifting or squatting, such as security guard, messenger, or car park attendant.  Dr. Cheng for the Defendant however considered that the Plaintiff should be able to continue working as a chef although there might be some loss of efficiency in his work.  Since being discharged by the Defendant, the Plaintiff did try to get work in a restaurant on 3 occasions but he failed to get any work and is apparently still unemployed. 

93.  I accept the view of Dr. Wong that the Plaintiff would not be fit for jobs which would involve bending and lifting heavy objects and it would not be feasible for him to continue to be a上什(Sheung Jab) in a restaurant kitchen.  However he may still be suitable to do other kind of work in a restaurant kitchen.  In this respect, I note that the Plaintiff did try to apply for jobs in restaurant kitchen albeit on all his 3 attempts he was unsuccessful.  I was told that he asked for jobs which were less demanding physically.  If he was completely unfit for any job in a kitchen, he would not have applied for such job.  Of course, given his loss of efficiency, even if he was to be employed to work in a restaurant again, it would be likely that he would not be paid as much as being a上什(Sheung Jab).  Having regard to the condition of the Plaintiff, I would assess his loss of income to be $5,000 per months.  Taking into account the 5% employer MPF contribution, the total amount of the loss of income would be $5,250 per month.

94.  I would assess his pre trial loss of income as follow:

(a)	23 May 02 to 13 February 04 - $ 332,733 ($16,100 x 20 + 16,100 x 2/3).
(b)	14 February 04 to 14 February 05 - $63,000. ($5250 x 12 = $63,000).

95.  On the post trial loss of income, if I disregard the exceptionally high probability of the Plaintiff’s injuring himself in the future because of his pre-existing condition I would have adopted the multiplier of 14.  However in the light of the high probability that the Plaintiff would suffer from injury even from ordinary daily task, I would reduce the multiplier to 10.  My assessment of the post trial loss of earning is thus $630,000. ($5250 x 12 x 10 = $630,000).

96.  As for the loss of earning capacity, I would be prepared to award the sum of $63,000.

97.  The parties were in agreement on other items of special damages.  I will award $8,070 for medical expenses, $1,370 for traveling, and $5,000 for tonic food.

Summary

98.  My assessment of the damages on full liability basis is as follows:

(a)	PSLA	$200,000.
(b)	Pre-trial loss of earning (inclusive of MPF)	$395,733
(d)	Loss of future earning (inclusive of MPF)	$630,000
(e)	Medical expenses	$8,070
(f)	Traveling expenses	$1,370
(g)	Tonic food	$5,000
	Total:	$1,240,173.
Less the employee compensation received		$410,334.60
	Net amount	$829,939.40

99.  There will be interest at 2% on the PSLA from the date of the writ to judgment, and interest on the special damages at half the prevailing judgment rate from 23 May 2002 to date of judgment.

100.  As the Plaintiff fails on liability, this action is dismissed with cost.