CHAN CHI MING BILLY v. LAU FUK CHEUNG t/a GOLD FULL RESTAURANT

HCPI 787/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 787 OF 1997

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J U D G M E N T

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1. In this action the Plaintiff claimed against the Defendant for injuries allegedly suffered in the course of his employment as a waiter in the Defendant's restaurant. As liability was disputed the court was invited to deal with that matter first.

2. The Plaintiff contended that the Defendant was liable in negligence for a number of reasons chiefly operating an unsafe system of work, failing to supervise, failing to keep the working area clean and dry etc and that the Defendant was in breach of his duties under the Occupiers Liability Ordinance.

3. The alleged accident occurred on 10 August 1994; EC proceedings began in 1996 and concluded in 1997 when a Consent Order was filed in settlement of the Plaintiff's claim.

The Alleged Accident - Plaintiffs Evidence

4. The Plaintiff was aged 22 at the time of the alleged accident. He worked at the Defendant's restaurant as a waiter from October 1993 to January 1994 and, after a short period with the KCR, began working for the Defendant again from April 1994. The restaurant was open from about 6.30 a.m. until about 10 p.m. According to DW1, the Defendant's sister who worked in the restaurant, the area overall was about 1500 square feet and in all there were about 23 employees. Photographs of the restaurant show it as a fairly typical family-style Chinese restaurant with simple décor and fittings.

5. The Plaintiff was the sole witness to the incident which resulted in his injury. At the time he was employed to work from 11 a.m. until 10 p.m. On the 10 August 1994 at about 8 p.m. during the dinner period, the Plaintiff went to serve some rice to a customer. It was the waiters' duty to serve any extra rice required during a meal. That night the Plaintiff was one of two waiters working under the supervision of DW2, the Defendant's brother. The Plaintiff said that dinner was a very busy period, although DW1 did not agree saying it was usually the quietest of the three meal periods. DW2 agreed with Plaintiff's counsel that business was good and that tables were placed outside the restaurant.

6. The rice was stored in an uninsulated, cylindrical, metal container heated by hot water. This container, according to the Plaintiff, at the time was placed to the side of the adjacent bar area and in front of one of the doors which gave access to the kitchen. The defence case was that the container was always placed within the bar area itself, near to, but not obstructing, passage to and from the kitchen door used by the waiters.

7. The bar was not in use at the time of the accident, it having closed as usual about 5.30 p.m. During the day it was used for preparation of food and hot drinks as well as storage of unwashed dishes. A grill and frying pan were in the bar.

After 5.30 p.m. no hot drinks were served from the bar and it was used for storage of extra dishes and bowls. The waiters, infrequently, might enter the bar area after 5.30 p.m. to obtain ice cubes from the ice machine there and to do so would have to move the rice container aside as it filled nearly the width of the passage behind the bar, about 20 inches. However the waiters also needed to have access to a hatch above the grill and fry pan where they put written orders into a sieve for preparation by kitchen staff.

8. The rice container was on wheels and measured 32.5 inches high and 19 inches in diameter. Roughly one third of the container held very hot or boiling water, which was kept hot by an electric element in the base. Rice was kept in the top two-thirds of the space. The kitchen staff would fill the container and replenish it as necessary. The waiters wheeled it to and from the kitchen, a distance of about 40 inches or so from the kitchen door.

9. When the Plaintiff went to serve the rice the container was nearly empty and he was obliged to stoop over the container to scoop rice from the sides. He was in a diagonal position facing back into the restaurant so that he could keep an eye on the customers. As he bent over the container his foot slipped on the tiled floor which was wet and greasy. He went forwards, his right leg shot straight out behind him and his right heel hit the corner of the large refrigerator which, at that time, was immediately behind him and to the side of the bar area.

10. The Plaintiff's evidence was that the floor in this area was commonly greasy and wet. He agreed that the restaurant was regularly cleaned at 5.30 p.m. but said that it would not be cleaned thereafter until the restaurant closed. At the time of the accident he was wearing leather shoes. The Defendant did not provide him with any uniform, or non-slip footwear and he had never been told to wear any particular footwear while working. The defence disputed this, claiming the Plaintiff usually wore unsuitable footwear and had been warned about the dangers of so doing.

11. No one witnessed the accident and as the Plaintiff was in great pain he went and sat outside for 20 minutes. His presence was missed and DW 2 sent someone to fetch him, but he asked for permission to leave early. The next day the pain had worsened considerably and he sought and was granted leave by DW1 to see a doctor. DW1 gave him $100.00 towards the consultation. The Plaintiff consulted Dr Tang Pak-sang on 11 August 1994 and over the next few days continued to work intermittently while seeking treatment. On 22 August 1994 he went to the Department of Orthopaedics and Traumatology at Li Ka Shing Specialist Clinic and was given sick leave.

12. On 17 September 1994 DW1 reported the accident to the Labour Department and submitted the Form 2. The date of the accident was filled in as 22 August 1994, the first day of the sick leave, not the first day of the accident. The Plaintiff said he had been advised, incorrectly, by someone at the Labour Department that the correct date should be the first day of the sick leave. DW1 claimed she had not been told the date of the accident and that she had simply adopted the first day of the sick leave as the date. The Defendant was apprised of the confusion about the date as early as 1996. The defence denied any accident occurred whether on 10 or 22 August 1996.

13. The cause of the accident in the Form 2 was given as "Hit corner of fridge". DW1 said that although she had signed the Form 2 she had not filled in the details and suggested these had been filled in by the insurance agent she had contacted.

14. As a result of the accident the Plaintiff suffered injuries to his right ankle and heel and there ensued a long period of medical treatment and various complications which have, allegedly, precluded him from working for a great deal of the time since 1994 and which, it is claimed, mean that unresolved medical difficulties still affect his ability to walk, move, stand and ultimately, work. Those matters were not canvassed in this hearing.

Alleged Issue Estoppel

15. The Defendant's initial argument was that the accident had not happened at all, whether on the 10 August 1994, or on the 22 August 1994. DW2 said that if the accident had taken place at the time stated he would have been in a position to see it from the cash desk. He denied being told about any accident.

16. DW1, who was not present at the time of the accident, said the Plaintiff had not told her about it, although she remembered the Plaintiff asking her for leave to see a doctor at some time during that month.

17. It was difficult to see how at this late stage the Defendant could deny any accident had occurred. The Form 2 signed by DW1 had been sent to the Labour Department in September 1994 and settlement had been made pursuant to a Consent Order presented to and approved by the Court on 14 January 1997.

18. The defence argument was that as there had been no hearing of the matter and as payment had been made at the behest of the insurance company without the Defendant having any knowledge of the settlement, the Defendant was not estopped from raising the issue again at this hearing. Rather unsurprisingly the Plaintiff opposed this argument with some vigour.

19. No evidence was called by the Defendant to explain why the issue of liability had not been tested in the EC proceedings, nor why, in the period since the settlement, no attempt was made to upset it. It appears to have been only when these proceedings were put in train that any denial of the accident was advanced.

20. The Plaintiff argued that an unimpeached compromise, as the EC settlement can be described, represents the end of the dispute or disputes from which it arose. Issues of fact and law relating to the original dispute are buried in the compromise and the court will not allow them to be raised afresh in the context of a new action, unless the parties have agreed to do so if certain events occur in the future. Here there had not been such an agreement.

21. The Plaintiff relied on the case of Wong Wang Sum v. Lee Kam Engineering Co. (a firm) & Anor [1996] 3 HKC 627 to support its argument that the Defendant was estopped at this date from denying that an accident had occurred given the basis of the EC settlement. The Defendant sought to distinguish that case as the instant case had not gone to a trial as Wong Wang Sum had done and there had been no judgment on the merits which would entitle the Plaintiff to invoke an issue estoppel.

22. I acceded to the Plaintiff's argument that the Defendant was estopped from pursuing the issue of whether the accident had occurred at all. The parties to this action are the same parties as were in the EC proceedings. The settlement or compromise was agreed by both parties some three years after the date of the accident on which it was founded. The Defendant had been legally represented throughout those proceedings, the matter having been dealt with from the beginning by his insurers. No new evidence had been produced by the Defendant to show that the settlement had been improperly agreed, or why it should now be upset.

23. DW1's evidence was that she had signed the Form 2, the details of which were filled in by the insurance agent based on information she had been given by the Plaintiff. She said she had had no reason to disbelieve the Plaintiff, but almost immediately contradicted this evidence by saying that she had 'had a suspicion' as she did not witness the accident and because the Plaintiff continued to work without immediately producing a sick leave certificate. She did not feel he was so seriously injured and told the agent her suspicions. Presumably this suspicion was that the accident did not happen, although this was not clear from her evidence.

24. The insurance agent told her she had to report the accident to the Labour Department anyway and the insurers appointed solicitors to handle the claim. According to DW1 the insurance company did not contact her further and she claimed to have no knowledge of the settlement which was incorporated in the Consent Order.

25. I was not impressed by DW1 as a witness in general and I did not accept her evidence on this matter. It would be an unusually philanthropic insurance company which would pay out on a claim where the policy holder had advised the likelihood that no accident had occurred, particularly where the only witness to the accident was the claimant. In such circumstances one might reasonably expect the claim to be contested. I accept that it was possible the insurance company had not advised DW1 herself of the settlement, but presumably any correspondence would be with the proprietor of the business, who was not DW1, or DW2, but their brother, the Defendant Lau Fuk Cheung, who did not give evidence in these proceedings.

26. On the question of whether or not the Defendant can reopen the issue of whether there was an accident at all, I find that in the circumstances of this case it cannot do so, although I accept that in certain circumstances it may be possible to revisit matters on which a compromise is based.

Evidence of DW1

27. The Defendant denied that any accident occurred, but said if it had the Plaintiff had failed to advise the Defendant of it at the time. DW1 maintained that the cleaning system was such that the area was kept safe and dry. The restaurant was cleaned at 10.30 a.m., 2 p.m., 5.30 p.m. and when the restaurant closed. If the floor was greasy, wet, or dirty between those times the waiters or cleaners were detailed to clean it. She agreed that the kitchen floor was likely to be wet, but said that it would not be slippery because non-slip tiles were laid. She did not agree with suggestions that water could be tramped from the kitchen into the restaurant area by people going in and out of the kitchen and said that even if that happened the water would dry quickly because the ventilation was good.

28. She refuted suggestions that grease from the grill and frying pan could have coated the floor and stressed that the 5.30 p.m. cleaning was intended to deal with such spillage. She agreed there was no restriction on staff going in and out of the kitchen area and that many people used the kitchen door which gave onto the bar area.

29. When counsel for the Plaintiff suggested that steam from the rice container itself could have caused a damp floor PW1 claimed that was not possible, that the only condensation might come from the lid and as the lid, when lifted off, would be placed on the grill, no condensation would wet the floor.

30. DW1 confirmed that there were no rules about staff footwear but said staff would be reminded to wear suitable shoes. Slippers were not acceptable, although when shown a photograph, taken some years after this incident, of a kitchen worker at the restaurant wearing "flip-flops" she agreed that it was possible that kitchen workers might wear them if their other footwear was wet. She claimed that Plaintiff usually wore canvas shoes which she regarded as unsuitable.

Evidence of DW2

31. DW2 had worked at the restaurant for about 10 years and was familiar with its running. His evidence was broadly supportive of DW1's. It was he who measured the rice cooker and made a sketch plan with measurements of the area where the accident allegedly occurred.

32. He said he had never seen the rice container in the position described by the Plaintiff, but if he had he would have asked the waiters to place it behind the bar. He said it would have been difficult or impossible for the Plaintiff to have scooped rice from the container in the position and in the manner he described.

33. This witness said that the kitchen floor was always wet but never slippery. He believed that all kitchens always had a wet floor. He did not agree that water could be tramped from the kitchen to the bar area, as the kitchen workers never went into the bar area and waiters did not go into the kitchen. That conflicted with DW1's evidence that many people used that particular door and that there were no restrictions on staff going anywhere in the restaurant. I found this contention by DW2 rather unlikely.

34. DW2 did not witness the accident but said that he would have been able to if it occurred, as the cashier desk he usually occupied faced the bar area. He brushed aside the possibility of the accident happening when he was occupied with duties other than cashier's duties, which, as there were only two waiters working for the dinner period, he agreed did happen on occasions.

35. This witness did not consider there were any inherent dangers in working in the restaurant. His expressed view was "it is only a restaurant, there is nothing unsafe about it". He did not consider there was any need to pay attention to safety matters as "the place was safe". When shown the same photo as shown to DW1, he said he did not consider working in flip-flops was an unsafe practice. He denied the Plaintiff had told him about the accident on the night it happened, nor could he remember causing a search to be made for him after discovering his absence.

Conclusion

36. Having considered the evidence I was satisfied that the Defendant was liable to the Plaintiff both for failing to provide a safe place of work and also as occupier. I found that the Plaintiff did have an accident on 10 August 1994 which caused injury to his heel and that the immediate cause of that accident was more likely than not the wet and greasy condition of the floor on which the rice container stood.

37. Although there was a regular cleaning system it was inadequate given the size of the restaurant, the nature of the food preparation in the bar area, the constantly wet state of the kitchen floor and the number of people with access to the area. What was needed was one person with responsibility for the clean dry state of the floor and who had primary responsibility for spillage that occurred between the regular cleanings.

38. DW1 said the cleaners as well as the waiters were responsible for cleaning, but it might be expected that, as the Plaintiff suggested, the cleaners' dishwashing duties would take precedence, particularly at peak periods.

39. I did not accept the evidence of DW1 and DW2 that the rice container was always kept in a protected position within the confines of the bar. The container was on wheels and was rolled in and out of position by the waiters at intervals. There could be no certainty that they would always replace it behind the bar, particularly as their desire for convenient access could dictate the position.

40. Further there was always the possibility that a person seeking to enter the bar for whatever purpose might pull out the container and leave it in the area to the side of the bar. The difference between the position described by the Plaintiff and the position described by the defence witnesses was very small - a matter of one or two paces. The likelihood of the Plaintiff's heel hitting the refrigerator as he went forwards and his leg went out behind him was high, as the refrigerator was extremely close to the disputed area, whether that referred to by the Plaintiff, or that contended for by the defence witnesses.

41. There appeared to be little concern by the Defendant about staff safety. There was no system of written warnings about suitable footwear and I did not accept DW1's claim that she had warned the Plaintiff to wear safe shoes. If no footwear was provided for workers in the kitchen and serving areas, there should have been some formal requirement, made plain to the workers, that they could not work unless suitably shod.

42. DW1 and DW2 maintained that the container was kept in the bar area to allow the waiters clear access to the kitchen and because the high temperature and instability of the container made it dangerous, but neither appeared alert to the danger to staff of burns and scalds, if the container was placed anywhere at all within the bar area, or any area to which staff might need access. As the container was on wheels it was even more of a hazard as accidental contact could change its position.

43. The safest place for the rice container would have been a special enclosure with a built-in power point and an open top for access. The container would be stable, the walls of the enclosure would offer protection from contact and there would be minimal danger of any accident with the electric cord, or of the container rolling accidentally to a different position.

44. The Plaintiff's credibility was impugned by the Defendant because of various untruths he had told about jobs he had held in the period after the accident. The Plaintiff admitted he had not been honest with his lawyer and explained his behaviour as being occasioned in part by his inability to obtain his proper employment records and because he feared his law suit might be adversely affected, he having realised by that stage that his case was a difficult one.

45. Although I noted this admission as one which might affect Plaintiff's general credibility, I was nonetheless satisfied that the Plaintiff was telling the truth about the occurrence of the accident and the manner in which it happened.

46. For these reasons, I find the Defendant liable to the Plaintiff for this accident. I have considered whether there was any contributory negligence on the part of the Plaintiff but in the circumstances do not find anything to show that he was.

47. Judgment on liability is entered for the Plaintiff, with damages to be assessed, if not agreed.

48. An order nisi for costs of this hearing to the Plaintiff.

49. Plaintiff's own costs to be taxed in accordance with Legal Aid regulation.

50. Hearing on quantum of damages to be restored on application of parties if no agreement can be reached.

51. Liberty to apply.