WONG TAI WAI DAVID v. HONG KONG CABLE TELEVISION LTD.

HCPI 541/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.541 OF 2001

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J U D G M E N T

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1. The plaintiff claims damages in respect of an injury at work against the defendant employer. The trial is on both liability and quantum.

The facts

2. There is no material dispute to the facts and I find them as follows.

3. The plaintiff was employed by the defendant as a technician in July 1995. His duties included calling at the homes of prospective subscribers to the defendant's cable television service and installing the decoder on the TV set.

4. On 29 June 1998, the plaintiff was at the home of a subscriber. There was a 14 inch TV set on the floor and it had to be moved a short distance. The plaintiff asked the female householder to move the set herself, but she was on the phone and ignored the plaintiff. So the plaintiff moved it himself. Suddenly, he heard a snap sound at the right wrist. He felt a little pain and was able to complete the remaining simple task of installation.

5. After completing this job order, he reported the incident to his supervisor. His supervisor examined his wrist and thought it was a sprain and was not too serious. He assigned another job to the plaintiff. When the plaintiff was about to complete this job order, his right wrist was swollen and the pain became more severe. He went to the Accident and Emergency Department of the United Christian Hospital ("UCH"). The doctor took an X-ray and found there was a sprain in the right wrist with no sign of bony fracture. He was discharged with analgesic.

6. On that night, the plaintiff still feel much pain and swelling. He went to the A&E of Kwong Wah Hospital.

7. In the next morning, he visited the A&E of UCH again, and was given an appointment with the Department of Orthopaedics and Traumatology. On 20 July 1998, he was diagnosed to have suffered from torn triangular fibro-cartilage complex ("TFCC") in the right wrist. In view of persistent pain, arthroscopic debridement to remove a fold in the torn cartilage was performed on 21 December 1998. He was discharged after three days. In the following months, he received rehabilitation therapy. He was granted sick leave from 30 June 1998 to 17 August 1999.

8. The plaintiff belonged to a team of five with one supervisor/driver and three other technicians. They were deployed on a one-person job per household. In theory, the plaintiff could request assistance from his supervisor by phone but in practice it was difficult to get assistance as his supervisor and/or team mates might not be nearby. Sometimes he would request the householders for assistance in moving heavy objects, but as the jobs were during work hours, the male householders would usually be out, leaving behind females and children.

9. The plaintiff agreed that the 14 inch TV set was small in size and in fact the smallest size apart from the mini-TV set. He agreed it required no training nor help from another person to move it. It was a simple one-man job. During his past three years of work experience, he had moved such TV sets hundreds of times and had never encountered any problem. On the day in question, he did not envisage there was any special problem with moving the set and there was no need to call the supervisor. He moved it in the usual way as before.

10. In the Agreed Bundle of documents, there is the Employee's Safety Manual of the defendant, which included a section on lifting heavy objects. The plaintiff said he never saw this manual before the incident. The defence has called no evidence to contradict him on that.

The plaintiff's case

11. There is no issue that the assignment of a second job to the plaintiff before he went to consult the doctor has aggravated the injury. The case was based on the original injury.

12. Counsel for the plaintiff Mr Szeto based the claim of breach of employer's duty and/or the tortious duty of care as such :

(a) The defendant has not provided the plaintiff with any training on lifting of objects at all.

(b) Moving a 14 inch TV set is a dangerous operation when viewed in the context of the lack of proper training and warning as to the associated risks.

(c) The system of requesting help from colleagues in lifting heavy objects is impracticable by reason of the concurrent duties of the colleagues.

(d) Request for assistance from the householder is impracticable because usually only females and children will be present at home at the time of call.

13. It was submitted that an employer cannot be too careful when dealing with safety of the employee, and the duty is non-delegable.

14. Although a 14 inch TV set is the smallest in size, there is still some weight. Without proper training, it is as risky as moving a heavy set, especially when the employee has to move it quite a few times a day.

15. In order to ensure safety of the employee, the defendant should have ascertained with the subscriber the size of the TV set, and if more than one person is required to move it, to request the subscriber to leave a suitable person at home to move it.

16. Notwithstanding the plaintiff has never received the safety manual before the incident, it was cosmetic because the plaintiff was never provided with the gloves for lifting as mentioned in the manual.

17. Mr Szeto referred to Lai Wah Wai v. Castco Testing Centre Ltd [1996] 2 HKC 44 where the plaintiff therein sustained injuries in the course of lifting a mould with a concrete block on a construction site. Cheung J (as he then was) stated at p.52H-I :

"I find that negligence is established against the defendant. The moulds provided by the defendant were simply too heavy to be lifted up by the plaintiff. It had not prohibited the workers from lifting the moulds with the concrete. It had not ensured that the workers would not lift the moulds with the concrete. It had not instructed the workers the safe posture in the lifting of the moulds."

18. Mr Szeto also referred to Sun Wan Co. v. Ng Kam [1988] HKC 358 that there was no room for a finding that the plaintiff ought to have taken his own precautions to make the condoned unsafe system more safe.

The defence case

19. Counsel for the defence Mr Lim submitted that a distinction ought to be drawn between the lifting of heavy objects and the lifting of a 14 inch TV set. On the plaintiff's own evidence, it was a one person task. The plaintiff had done it hundred of times and there was no problem. It did not occur to him that any help was required. Mr Lim said one would have expected to do it by oneself at home without calling for any assistance.

20. The requirement of training must be proportional to the complexity and risk of the operation involved. Moving a 14 inch TV set is a simple and non-complicated task which requires no training or warning. Mr Lim relied on the judgment in Chinese of Deputy Judge Lam in 雲淑莉及力根有限公司, HCPI 1142/1996, that it is reasonable to leave a simple and non-complicated task to the employee on the spot. He asked rhetorically what the defendant could have done to prevent the accident.

21. Further, as the plaintiff was not injured in moving a heavy object, training or precautions as to lifting heavy object was not relevant as it could not be shown that the absence of it had caused the injury sustained.

Breach of duty?

22. According to Cheung Suk Wai v. AG [1996] 4 HKC 288, per Leung J (as he then was) at p.294 :

"The plaintiff has to prove the defendant failed to take reasonable care. The law requires that the defendant had to provide safe tools, a safe system of work and not to subject the plaintiff to risk which the defendant was or should have been aware of but the plaintiff has to show that the defendant failed to do so in order to succeed."

23. There is no evidence as to the actual weight of the 14 inch TV set, but the plaintiff accepted that it was the smallest size and suitable for one person to move it.

24. The plaintiff did not describe in any details how the injury was sustained. Under cross-examination, he was asked why it happened and answered he did not know and perhaps it was an accident.

25. Dr Lam Kwong-chin, orthopaedic expert on behalf of the defence commented that by common sense, a 14 inch TV set was not too heavy. In lifting it, there should be no twisting movement of the wrist joints since there was no great external force or impact. It was rather unusual to have caused TFCC on the plaintiff.

26. The lack of particularity as to how the accident happened added to the difficulty in assessing what safety measures could have been included to prevent the accident.

27. The plaintiff himself said it would not require any training to move a 14 inch TV set. Be that as it may, it may not be appropriate to place too much weight on that alone as the plaintiff is no expert on ergonomics. However, when counsel for the plaintiff was asked as to what safety measures should have been included in the system of work in relation to moving or lifting of a 14 inch TV set, he could only point to the lack of training and warning as to the general risk of moving of lifting objects.

28. In Cheung Suk Wai (supra), the plaintiff was employed to sweep the parks. She needed to put the refuse into garbage bags and then transfer them to a refuse centre. She would swing them over the side of the four feet tall container. In April 1989, she sprained her back when sweeping. On that day she used a broom longer and different from the one she normally used. In May 1989, she suffered another sprain of her back. The plaintiff relied on Ping & Ors v. Esselte Letraset Ltd [1992] 1 PIQR 74 to the extent that where there was no real programme of educating and warning employees of the risks inherent in their work of the various injuries which the plaintiff suffered, the failure by the defendant to give warning to the plaintiff amounted to a breach of duty of care to them.

29. Leung J found that in Ping & Ors, the work involved was of a complicated nature and the inherent risks were not apparent to the worker and it was distinguished on the facts. At p.295, Leung J referred to Winter v. Cardiff Rural District Council [1950] 1 All ER 819, per Lord Oaksey at pp 822-823 :

"In my opinion, the common law duty of an employer of labour is to act reasonably in all the circumstances. One of those circumstances is that he is an employer of labour, and it is, therefore, reasonable that he should employ competent servants, should supply them with adequate plant, and should give adequate directions as to the system of work or mode of operation, but this does not mean that an employer must decide on every detail of the system of work or mode of operation. There is a sphere in which the employer must exercise his discretion and there are other spheres in which foremen and workmen must exercise theirs. ... where the system or mode of operation is complicated or highly dangerous or prolonged or involves a number of men performing different functions, it is naturally a matter for the employer to take the responsibility of deciding what system shall be adopted. On the other hand, where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foreman or workmen on the spot."

30. As regard the accident in April, Leung J found that the plaintiff had previous experience in cleaning work of that nature which required no special skill and instruction peculiar to her duties. There was no evidence on the length of the broom in question or it was an unsafe tool. The plaintiff did not put her case that her injury was the result of repetitive sweeping motion over a long period of time so that the defendant should warn her of the risk of injury. Her case was simply that the injury in April was a single isolated incident. His Lordship was not satisfied that the injury could be attributable to the defendant's fault whether in failing to provide a safe tool or a safe system of work.

31. As regard the accident in May, Leung J found that putting bags of refuse into refuse bins was a simple operation which the plaintiff had performed since she took up employment. Unlike the circumstances in Lai Wah Wai and other cases cited where the plaintiffs there were required to move or lift fixed loads, the plaintiff was free to decide on the weight of the bags and how to carry out the simple operation in a way most suitable to her physical ability. No liability was found against the employer.

32. In Lai Wah Wai, the moulds were filled with concrete and weighed at least 21 to 24 kg. They were much heavier than a 14 inch TV set. They were simply too heavy to be lifted by one person. I find that the considerations therein are different from the present case.

33. The plaintiff's case is that he was injured in an isolated incident as opposed to repetition. I find that moving or lifting a 14 inch TV set is a simple and non-complicated operation. It is a one person job and does not require the assistance of either the colleague or householder. There is no evidence to show what inherent risk is involved or what training is required in relation to that operation by one person. I find that it is reasonable to leave the execution of the operation to the plaintiff on the spot.

34. The plaintiff has failed to proved a case against the defendant. The claim for damages is dismissed. Judgment is entered for the defendant with order nisi for costs to the defendant. The plaintiff's own costs is to be taxed in accordance with the Legal Aid Regulations.