TAMANG SHUSHMA v. PIZZAEXPRESS (HONG KONG) LTD

DCPI 2488/2021

[2023] HKDC 1328

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 2488 OF 2021

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  This is a personal injuries claim brought by the plaintiff against her former employer that arose out of an accident at work.

B. BACKGROUND

B.1 The Parties

2.  The plaintiff, a Nepalese lady who is a resident in Hong Kong, claims damages arising from an accident at her work place which occurred on 22 December 2016.

3.  The defendant operates a chain of Italian restaurants at various locations in Hong Kong under the name of “Pizza Express”. At the material time, the plaintiff was working in one of the restaurants located at Shop 1076, Level 1, Yoho Mall, 8-9 Long Yat Road, Yuen Long, New Territories, Hong Kong (“the Restaurant”).

4.  The defendant was the plaintiff’s employer. The plaintiff had worked for the defendant from February 2015 until she resigned from her job in March 2018. At the material time, the plaintiff was a Senior Pizzariolo, having been promoted by the defendant in April 2016.

5.  As a Senior Pizzaiolo, the plaintiff was the second highest ranking staff member of the kitchen in the Restaurant (“the Kitchen”). The staff in the Kitchen levels from lowest to highest are as follows: Pizzaiolo, Pizzaiolo Captain, Senior Pizzaiolo, Head Pizzaiolo.

6.  There is no dispute that the plaintiff’s duties as “Senior Pizzaiolo” included making food and beverage; checking and controlling the quality of food; supervising and managing junior staff members in the kitchen; organizing daily duties and work schedule for subordinates; manually handling food supplies that were delivered to the Restaurant; and providing assistance to junior staff members in the kitchen.

B.2 The Accident

7.  On 22 December 2016, at about 10:30 am, the plaintiff claims that she suffered an injury to her back while she was retrieving a container of dough from the upper compartment of a cold storage unit, ie a freezer (“the Freezer”), in the cleaning room of the Restaurant (“the Cleaning Room”). She alleges that her right foot slipped on a patch of water on the floor and then stepped on a defective drainage cover. As a result, she injured her back (“the Accident”).

B.3 The Pleadings

8.  According to the plaintiff, the floor area in front of the Freezer was very narrow and crowded with stacks of large trays filled with defrosted dough and other items. The ceramic tiled floor was wet and slippery. Further, there was a defective drainage outlet installed on the floor close to the Freezer: (§4 of the re-amended statement of claim (“RSOC”)).

9.  The plaintiff claims that she had experienced difficulties in pulling out the dough container because a thick layer of frost had built up inside the Freezer. The plaintiff attempted to pull out the container with all her body strength. In doing so, the plaintiff’s right foot stepped and slipped on a patch of water on the floor, and further slipped her right foot on the defective drainage outlet. In the course of regaining her balance, the plaintiff heard a cracking sound and immediately felt sharp pain on her back: (§4 of RSOC).

10.  Thus, the plaintiff’s case on negligence/breach of duty of care is primarily based on the defendant’s failure to: (i) prevent “slip and fall” hazard; (ii) repair defective drainage outlet; (iii) provide sufficient floor space for the plaintiff’s work; (iv) put up warnings on potential danger and slippery condition of the floor; (v) provide sufficient protective equipment and device to prevent “slip and fall” hazard; and (vi) provide adequate training, instruction and supervision: (§5 of RSOC).

11.  In the RSOC, the plaintiff claims damages against the defendant under common law negligence; the defendant’s breach of the implied terms of employment contract; the defendant’s breach of statutory duties under the Occupiers Liability Ordinance, Cap 314 (“OLO”); the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”); and the Factories and Industrial Undertaking Ordinance, Cap 59 (“FIUO”).

12.  Both issues of liability and quantum are disputed by the defendant.

13.  There is however no dispute that, at the time of the Accident, the plaintiff was in the course of her employment with the defendant and she was assigned to work in the Cleaning Room of the Restaurant: (§5 of the amended defence (“AD”)).

14.  According to the defendant, the plaintiff was required to attend the job practical training and had received such training during her employment with the defendant. The training covered, inter alia, fire safety, accident procedure, manual handling, food hygiene, general health and safety, knife handling risk assessment and prevention of work accidents in a kitchen environment: (§6(c)-(g) of AD).

15.  Further, the defendant avers that the plaintiff was familiar with retrieving containers of dough from the Freezer and placing pieces of dough onto plastic trays for defrosting, which she carried out on a frequent basis during her employment with the defendnat: (§6(h)-(j) of AD).

16.  As to the alleged circumstances of the Accident, the defendant avers that:-

(i) at all material times, the plaintiff wore suitable footwear, namely, Crocs industrial shoes with waterproof and anti-slip features: (§6(n) of AD);

(ii) the defendant disputes the condition of the floor as alleged by the plaintiff. The defendant’s case is that the placement of trolleys with stacked grey plastic trays was under the plaintiff’s control and judgement. Moreover, the plaintiff was responsible for keeping her work area neat and tidy: (§7 (a)-(c), (d) & (h) of AD);

(iii) the drainage outlet was also functional and free from defects. In any event, it was not necessary for the plaintiff to step onto the drainage outlet whilst taking dough out from the Freezer: (§7(g)-(i)); and

(iv) as the Freezer was equipped with automatic defrosting function, the defendant denies that a layer of frost was built up inside the upper compartment of the freezing unit. The task of retrieving a container of dough from the Freezer is a simple and non-complicated one which the plaintiff, as an experienced Senior Pizzaiolo, should have been able to handle without difficulty: (§7(k)-(l) & §7(o) of AD).

17.  Thus, the defendant denies any breach of duty on its part. The defendant’s case is that the Accident was wholly caused or contributed to by the negligence of the plaintiff: (§14 of AD).

18.  In the event that if the defendant is found liable to the plaintiff, the defendant says that credit should be given to the employees’ compensation already received by the plaintiff in the sum of HK$250,000. Further, the defendant claims that any damages payable to the plaintiff should be subject to the issues of contributory negligence and also the plaintiff’s pre-existing condition.

C. DISCUSSION

C.1 Issues not in dispute

19.  Based on the parties’ pleaded case and admitted facts, the following issues do not appear to be in dispute:-

(i) the plaintiff was 27 years old at the time of the Accident and was 34 years old at the time of trial;

(ii) she was an employee of the defendant and was assigned to work in the Cleaning Room of the Restaurant on the day and at the time of the Accident;

(iii) part of the plaintiff’s job duties required her to retrieve frozen dough from the Freezer;

(iv) the defendant owed a non-delegable duty to take reasonable care for the safety of the plaintiff in the course of her employment;

(v) the plaintiff allegedly sustained an injury to her back in the course of her employment;

(vi) the defendant was an occupier and the plaintiff was a lawful visitor of the Restaurant;

(vii) the defendant was the plaintiff’s employer and was the occupier of the Restaurant within the meaning of OSHO; and

(viii) the defendant was the proprietor of FIUO.

C.2 Issues in dispute

20.  Thus, broadly speaking, the issues in dispute in this case appear to be as follows:-

(i) whether the Accident happened as the plaintiff alleges;

(ii) if the Accident happened as the plaintiff alleges, whether the Accident was caused by the defendant’s failure/breach of duties in taking reasonable care for the plaintiff’s safety in the course of her employment;

(iii) what is the contributory negligence on the part of the plaintiff, if any; and

(iv) if the defendant is found liable for Accident, the amount of damages that the plaintiff is entitled to.

21.  Specifically, the defendant disputes the following factual issues:-

(i) that there was frozen ice or frost built up inside the Freezer which made retrieving the trays of frozen dough stored inside difficult;

(ii) that the floor of the Cleaning Room next to the Freezer was wet and slippery due to trays of dough left overnight there for defrosting; and

(iii) that the drainage floor outlet was defective in that the tile covers were loose and therefore caused the plaintiff to lose her balance when she inadvertently stepped on them during the Accident.

22.  Closely associated with the above factual disputes are the more fundamental issues which the court will have to make ultimate findings on:-

(i) whether the defendant had provided a safe system of work and a safe place of work to the plaintiff;

(ii) whether the defendant had provided adequate and suitable equipment to the plaintiff; and

(iii) whether the defendant had provided adequate training to the plaintiff.

C.3 General approach in assessing witnesses’ oral evidence and credibility

23.  As there was no closed circuit television (“CCTV”) or live witness to the Accident, this case very much hinges on the credibility of the witnesses, particularly that of the plaintiff. Hence, I think it is important to remind ourselves the principles involved when it comes to the assessment of credibility of witnesses in a trial.

24.  In this regard, I have found the following often cited passage in Hui Cheung Fai v Daiwa Development Limited, unreported HCA 1734/2009 (8 April 2014; DHCJ Eugene Fung) at §§77-82 helpful:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce)…

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth”.

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants”.

25.  In my recent judgment in Chung Ho Ming v Chan Wai Yip and Anor, uureported, DCPI 1012/2020 (25 July 2023) at §46, I mentioned that:-

“Where the plaintiff has put forward one version of the event, which is different from a previous version of the event also put forward by him, “the judge’s function was not to decide which of the Plaintiff’s versions of the incident was more preferable. His role was to determine whether, on the balance of probabilities, the Plaintiff’s current version of the incident was correct. That involved considering whether the Plaintiff’s previous versions undermined his current version to such an extent that it could not be said that the Plaintiff’s current version of the incident was probably correct…”: Chan Chi Shing v Tsang Fook Metal Engineering, CACV 238/1999 (21 December 1999) at p.3, as applied in Liu Kin Pong v Kee Wah Food Production Limited, HCPI 632/2014 (6 July 2017) and Haider Awais, supra”.

26.  In this regard, I also find the passage below relies on Singh Balwinder v Sino Phil Engineering Services Ltd & Anor, DCEC 374/2003, unreported, where Deputy District Court Judge ST Poon (as he then was) helpful:-

“28. The Applicant is certainly not a witness giving perfect evidence. However, given the fact that the accident happened in 2001, he should not be expected to give a perfect account of exactly how the accident happened, particularly as to details like the size of the falling concrete and his exact position when he was hit. After the accident, the Applicant had to report the matter throughout the years to various people representing different interests, for instance, Rai, the Labour Department, the officer(s) of the insurance company, numerous medical officers or experts, legal practitioners, and even DS. Given the background of the Applicant, it is not to be surprised that discrepancies might have happened due to misunderstandings. Furthermore, people could have made mistakes in receiving and recording information”.

C.4 Witnesses who gave evidence at trial

27.  The following are the witnesses who have given evidence on behalf of the plaintiff at the trial:-

(i) PW1 – the plaintiff herself;

(ii) PW2 – the plaintiff’s former colleague Ms Sabina Rai (“Rai”); and

(iii) PW3 – another former colleague of the plaintiff Mr Mahesh Parsad Thapa (“Thapa”).

28.  The following are the witnesses who have given evidence on behalf of the defendant at the trial:-

(i) DW1 – Mr Au Cheuk Lam (also known as Nelson Au) (“Au”), who was the deputy manager of the Restaurant at the time of the Accident; and

(ii) DW2 – Ms Lee Hau Yi (“Lee”), the loss adjuster who was responsible to take statements from the plaintiff and Thapa on behalf of the defendant’s insurer as part of the initial investigations into the Accident.

29.  Besides the above 2 witnesses for the defendant, one of the supervisors/deputy manager at the Restaurant at the time of the Accident, Ms Chan Mei Kwan (also known as Nikki Chan) (“Chan”), gave her evidence on behalf of the defendant by way of a separate deposition proceedings which took place on 25 and 29 November 2021 before Mr Martin Wong of counsel, the examiner. This was necessitated by the fact that Chan was leaving Hong Kong for good to settle in another country before the trial. Hence, her evidence, which is contained in the typewritten transcripts produced by the parties in the e-bundle[1], would be taken into account by the court as part of the defendant’s case.

30.  Further, towards the end of the trial, the parties agreed the contents of the witness statement of one of the defendant’s witnesses Ms Lai Ka Man (“Lai”) without calling her to give evidence. Equally, the contents of her statement which are not controversial, will be taken into account in my consideration of the issue of liability in this case.

C.5 General comments on credibility of the parties’ witnesses

31.  Before going into the details of evidence that the court needs to make factual findings on, I would like to first comment on the credibility of the different witnesses who have given oral evidence during the trial in this case.

32.  Let me start by saying that I do not accept the defendant’s primary submission that the plaintiff is an “unreliable and incredible witness”. Having observed her demeanor very carefully when she gave her oral evidence over the 2½ days when she was in the witness box, I do not find her to be such a witness as suggested by the defendant’s counsel in their closing submissions at all. This is despite of the very meticulous and detailed cross-examination carried out by the defendant’s leading counsel, Mr Richard Khaw SC, who appeared with Ms Vanessa Kwok, for this 6-day trial. While her evidence is by no means perfect, nor her evidence is without contradictions to some of the previous accounts given by her to the doctors and especially to the loss adjuster appointed by the defendant’s insurer, I agree with the plaintiff’s counsel, Mr Kamlesh Sadhwani, that the plaintiff had generally given honest, credible and believable evidence. In particular, I agree with Mr Sadhwani that the plaintiff came across as a very believable witness, judging by her “demeanor, condor and her immediate responses to difficult questions asked (of her) about events that took place from 2016 onwards”.

33.  In fact, upon review of my own typewritten notes of the evidence she gave while writing this judgment, I was reminded of her calm, dignified and collected manner when she gave her evidence. Throughout her evidence, I did not detect any signs of exaggeration, evasiveness or feigning on her part. In fact, she gave me a very strong impression that she was trying to tell the truth to the best of her ability, even though when some of the answers she gave clearly might not be helpful to her own case and might even appeared to be inconsistent or contradictory to some of the accounts she had previously given to the doctors at the public hospitals and certainly to the loss adjuster.

34.  Overall, I was very impressed by her as a witness and have no hesitation to accept her evidence in relation to the Accident itself and in most part of her claims on the injuries and loss. However, as stated in Hui Cheung Fai, supra, demeanor of a witness is not the most important factor in assessing a witness’ credibility in a civil case. Other factors like the inherent probabilities (or the inherent improbabilities) of the accounts given in respect of an the alleged accident; consistency with contemporaneous evidence like written documents, videos or photos; internal consistency with her own statements including her witness statement prepared for the purpose of the proceedings; and inconsistent or contradicts with previous accounts given to treating doctors or employers, etc., are much more important. Further, where there are inconsistencies or contradictions, the court will also look into whether there are any credible or plausible explanations for them. If there are, then the court will test them against the account(s) given by a witness in the witness box (and/or contained in his or her witness statement) and decide which one is the more probable and likely version.

35.  Having said the above, I can fully understand why the defendant or its insurer wanted to put the plaintiff to strict proof in this case, particularly in relation to the Accident itself as there was no direct witness to it and some of her earlier versions as recorded by the government doctors and particularly the loss adjuster are not consistent with her pleaded case or the account given in her witness statements filed for the purpose of the present proceedings.

36.  I find the same with Rai and Thapa’s evidence. While their evidence is by no means perfect, they did come across to me as sincere, genuine and honest witnesses. As in the case of the plaintiff, I think a lot of the problems arose in this case due to their lack of proficiency in the English language. All 3 of them are of Nepalese origin who are residents in Hong Kong. Neither English nor Cantonese is their mother tongue. The only language they are fluent in is Nepalese. Of course there is nothing wrong with that. But this in my view helps to explain why some of their words/sentences might have been “lost in translation” and some of the previous accounts of the Accident might appeared to be rather general, and vague and not focused at all.

37.  I find Au (DW1) basically is an honest witness who has tried his best to assist the court. However, a lot of his evidence was hampered by the fact that he has no direct knowledge on the matters he tried to speak on. Some of the accounts he gave in relation to the Accident was hearsay information he gleaned from others. He did not witness the Accident himself. He was not on duty on the day of the Accident but had returned to the Restaurant within an hour after it had occurred as he lived nearby. In my view, his account in many ways in fact was consistent with the plaintiff’s case if not in support of it. I am also acutely aware of the fact that Au is still working for the defendant as a deputy manager in one of their restaurants and therefore some of the answers he gave in relation to the system of work and what he had seen in the Restaurant was understandably guarded and very much erred on the side of caution.

38.  But one of the things I was very impressed by Au’s evidence is his very high opinion of the plaintiff’s “honestly, reliability and trustworthiness” throughout the time when the plaintiff was working with him at the Restaurant in a small team together. Under cross-examination, he confirmed that during the entire time when he was working together with the plaintiff, the plaintiff had never lied to him. This speaks volume about the integrity of a co-worker who had worked together in a small team and in a very close setting over many months/years together.

39.  In terms of how he used to communicate with the plaintiff, Au frankly admitted that both of their mother tongue is not English. While they could communicate in English, it was only at a very basic level with simple words/phrases used. They had a Nepalese co-worker by the name of Savi who worked in the Restaurant at the time and who could speak better English. Au stated Savi would help to translate between him and other Nepalese workers who worked in the Kitchen. That would include the plaintiff, Rai and Thapa who all could not speak very good English.

40.  In my view, I think this is much more reliable evidence on the true ability or command of English that the plaintiff (and her 2 witnesses) possessed than that given by the loss adjuster who had taken the statement from her and had only spent very limited time with her. Au’s comments on the plaintiff’s lack of proficiency of English is also consistent with my own observations on the plaintiff when she gave her evidence. I have not detected any signs that she was trying to feign her ability to speak or understand English during her testimony at all.

41.  I regret to find that I find Lee (DW2), the loss adjuster, as the most unhelpful and unbelievable witness in this case. It is clear from her evidence that she has not been completely truthful with the court on the way how she took the statements from the plaintiff and Thapa. She has also in my view deliberately undermined the role played by the then manager of the Restaurant, Evelyn Kang (“Kang”), during the interviews. I will deal with this matter in greater details in the later part of this judgment.

42.  I have not had the chance to hear the evidence (and therefore observed the demeanor) of Chan as her evidence was taken by way of deposition. However, I would agree with the plaintiff’s counsel that, judging from the transcripts, I do not think her evidence was particularly helpful to the defendant’s case. If anything, I think part of her evidence only reinforced the plaintiff and her former co-workers’ evidence on the general working condition inside the Kitchen and the Cleaning Room. Further, some of her evidence can be clearly refuted by the contemporaneous evidence like the photos and videos taken by the plaintiff’s then colleagues.

43.  However, I note that a very important witness of the defendant to the Accident is sorely missing in this case. For some reasons not explained to the court, Kang, the manager of the Restaurant at the time, who would have intimate knowledge of how the Restaurant was being run and who must have carried out initial investigations into the Accident after it happened, has failed to provide any statement to the loss adjuster; any initial report(s)/statement(s) she would be expected to compile which would form part of the defendant’s own investigations; any witness statement for the purpose of the present proceedings. It has also not been explained why she was not called to give any oral evidence as a witness at the trial, even though she was actively engaged in the investigation process, including at the time when the plaintiff and Thapa were being interviewed by Lee for the purpose of compiling the accident report to the insurer. I shall come back to this matter at the later part of the judgment under the discussion on the issue of liability.

D. LIABILITY

D.1 The plaintiff’s case

D.1.1 How did the Accident happen?

44.  In essence, the plaintiff’s case is that the defendant was in breach of its duties by asking her to take out containers of dough from the Freezer which were stuck to thick layers of ice; with collection of water on the floor and a defective drainage outlet nearby. In doing so, the plaintiff says that the defendant failed to provide safe equipment at work; a safe system of work; and a safe place of work. Further, the plaintiff says that there have been no instructions or supervision to ensure she was safe during the performance of her duties in removing the container. Even if there were such instructions and/or supervision, the plaintiff says that they were obviously inadequate in the circumstances. In addition, the plaintiff claims that the defendant has failed to provide adequate training to her. The plaintiff relies on the particulars of negligence pleaded in §5 of the RSOC.

45.  The following is how the plaintiff has described the Accident in her witness statement filed for the purpose of the present proceedings (“P’s WS”) of which’s contents she has adopted as part of her evidence-in- chief during the trial:-

“J. The Accident

27. On 22^nd December 2016 at about 10:30 a.m. (“the material time”) I was in the course of my employment and was assigned to work in the Cleaning Room of the Premises. There was a large cold storage unit in the Cleaning Room. At the material time, I was collecting some plastic containers filled with frozen dough from the upper compartment of the cold storage unit for defrosting. The upper compartment was about 1.8 metres above the floor level. The floor area in front of the cold storage unit was very narrow and crowded with stacks of large trays filled with defrosted dough that had been left there by the overnight staffs for use in the following morning as well as other items such as trolley, large rubbish bin and large trays loaded with kitchen utensils. The floor was made of ceramic tiles without anti-slip element and was slippery when becoming wet. There was also a drainage outlet installed on the floor close to the cold storage unit. However, the drainage outlet was defective as it was loosened and swaying when being stepped upon. The ceramic tile floor was also scattered with patches of water coming from the cold storage unit and from those defrosted pizza dough overnight. As a result, the floor area was wet and slippery. At the material time, I had collected 2 plastic containers of frozen pizza dough from the upper compartment of the cold storage unit. Each of the container of dough carried a dimension of 600mm (long) x 350mm (wide) x 80mm (deep) with a heavy weight. At the material time when I was collecting the next container of dough from the upper compartment of the cold storage unit, I experienced difficulty in pulling the container of dough out because thick layer of frost had built up at the side of the upper compartment of the cold storage unit. I then summed up my bodily strength and pulled the container of dough out with all my might. At the material time when I was pulling the container of dough out from the cold storage unit; suddenly and without any warning and to my unawareness, my right foot stepped on a patch of water on the wet and slippery floor. I further slipped my right foot on the swaying drainage outlet on the floor. The momentum produced by slippery episode resulted that a piece of dough shot out from the container and dropped on the floor. The slippery episode also caused me to lose balance and I was about to fall. I instinctively tried to regain my balance without falling down together with the container of dough. In the course of regaining my balance, I heard a cracking sound in my back. I immediately felt a sharp pain on my back (“the accident”)”.

46.  The plaintiff has further expanded the descriptions of the Accident in her supplemental witness statement dated 18 December 2019 (“P’s Supp WS”) in which she tried to deal with the various issues/disagreements in relation to the Accident raised by the defendant’s witnesses in their witness statements filed for the purpose of the present proceedings.

D.1.2 How the plaintiff and her witnesses initially described the Accident

47.  On the day of the accident, the Accident and Emergency (“A&E”) record of the Pok Oi Hospital (“POH”), states, “on duty...after taking up heavy object”.

48.  In addition, the various medical records/letters of the POH document that on 22 December 2016 the description of the plaintiff’s injury, all of which describe the injury as sprained back whilst picking up (heavy) object on duty.

49.  The Form 2 filed by the defendant on 30 December 2016 the accident is described as “twisted her back when she standing up for pick up the box”.

50.  Further, in Dr Lam Kwong Chin’s report, he examined the plaintiff on 27 June 2017 on behalf of the loss adjuster and noted that “she described that while she lift up a box of dough (weighing 11 kilos) and placed it on top of other boxes at waist level, she felt sudden back pain. She said the box was stuck by ice and she had to pull harder than usual”.

51.  None of the co-workers of the plaintiff who testified at trial actually witnessed the Accident. However, they all saw the plaintiff on the day of the Accident, after it had happened. In all the witness statements (including the P’s WS), all the plaintiff’s witnesses agree they have encountered difficulties in pulling plastic containers out of the Freezer.

52.  On the day of the Accident, Thapa was in the Kitchen next to the Cleaning Room where he suddenly heard a cry from the plaintiff. He went to see the plaintiff and found her standing up very slowly in great pain. The plaintiff told Thapa that she had hurt her back whilst she was trying to pull the container out of the compartment of the freezer and whilst she was pulling the container, she slipped due to a patch of water. Thapa immediately told Kang, the manager, about the Accident.

53.  The witness statement of Rai states, inter alia, that:-

(i) she noticed the plaintiff on the day of the accident sitting on a chair in the dining area of the defendant and appeared in great pain and distress. The plaintiff told her about the accident. Then together with the plaintiff they both went to POH in an ambulance;

(ii) she confirmed the plaintiff has limited English capability and a strong Nepalese accent and there were some communication problems not only with the ambulance officers but also the medical staff at POH. Rai confirms that the plaintiff was unable to answer a lot of the triage nurses questions due to her state and she assisted the plaintiff in translating to the medical staff when needed. However, when the doctor examined the plaintiff and asked questions, the plaintiff responded in a strong Nepalese accent in the English language and it was the impression of Rai that the doctor did not understand much. Rai also tried to assist in the translation and informed the doctor the plaintiff met with the accident when she slipped on the floor and hurt her back when pulling the plastic container filled with frozen dough out from the freezer. This dialogue was not more than one minute. The medical records on 22 December 2016 confirms a “friend” (Rai) was present as the informant. She left the hospital at around 6:30 pm.

54.  The plaintiff's account about the Accident is also corroborated by Rana Pun Puspa (“Rana”) who although was not present at the time of the Accident, went to visit the plaintiff at the hospital on the day of the Accident. She saw the plaintiff was in agony. The plaintiff told Rana very briefly that she slipped on the floor and hurt her back as she tried to pull out the container from the compartment of the Freezer.

55.  Bura in her witness statement also states that she found the plaintiff sitting on a chair in waiting for an ambulance. The plaintiff briefly told her that she had slipped her foot on some water when pulling the container of frozen pizza dough out from the freezer and injured her back.

56.  All the above witnesses corroborate the plaintiff account in respect of the type of shoes worn; the slippery state of the floor; defective drainage outlet/s; verbal complaints about the state of the floor; pulling out the dough containers; reasons why water was present on the floor; the general condition of the floor; washing vegetables; the type of sink; temperature checks of cold storage units; and defrosting the dough.

57.  The plaintiff and Thapa’s signed statements which were shown to them by the loss adjuster of the defendant, Lee, on 19 January 2017.

58.  The plaintiff’s account in respect of how the accident occurred is different in her statement taken by the loss adjuster (“the Loss Adjuster’s Statement”) when compared to her pleaded case.

59.  The plaintiff has explained these inconsistencies in P’s Supp WS, in that she had difficulty in understanding the spoken English of Lee. Further, she also felt that Lee experienced difficulties in understanding her English with a Nepalese accent. In addition, Kang volunteered most of the background information in relation to what she allegedly knew and saw at the accident location.

60.  Even though at the time, the plaintiff was provided with the Loss Adjuster’s Statement to read, due to the lack of proficiency in the English language on her part, the fact that she could not fully understand the handwriting due to its legibility and it was not translated to her in Nepalese, made it difficult for her to check and verify the contents of the Loss Adjuster’s Statement before signing.

61.  In the loss adjuster’s statement of Thapa dated 19 January 2019 (“Thapa’s Loss Adjuster Statement”), it is stated inter alia:-

“At about 10:30am, as usual, [the Plaintiff] stood in front of the freezer (the one next to the entrance of cleaner room) in the cleaner room to transfer the dough out of the freezer to defreeze. She was limping out of the cleaner room to kitchen to tell me that she got injured at her back when she was carrying the container with dough. Then she continues to work”.

62.  It is also recorded in Thapa’s Loss Adjuster’s Statement the condition of “the floor was normal without defects. It's dry, not slippery and there’s was no water or oil on it”.

63.  Thapa states in his supplementary witness statement that he does not agree to all its contents. In relation to his description of the Accident, he states this information was read to him by Lee and he did not state those matters himself. In addition, he could not fully understand what Lee said as he had difficulty in listening to her English that carried a Chinese accent combined with his lack of proficiency in the English language.

64.  At the time when Thapa’s Loss Adjuster’s Statement was taken, there was no English and Nepalese interpreter present. He mainly gave “yes” and “no” answers and he had a little understanding to the question/s asked of him. He did not provide the background information. When it came to reading the statement properly, he merely looked where to sign. In addition, he found it was difficult to read. Further, the statement was not read to him and he did not check and verify the contents of the statement as being correct or not.

65.  In evidence-in-chief, the plaintiff briefly commented on each of the contemporaneous photos and video footages which were taken by her former colleagues on various dates ranging from a couple of days to a couple of weeks/months after the Accident. She managed to give a time frame and context to them which I find to be very helpful. I accept her evidence on this. I also noted that the defendant has not produced any contemporaneous photos or videos (which presumably they must have taken after the Accident) to refute or contradict these records. I find these photos (about 20 of them[2]) and the 2 videos[3] taken by the plaintiff’s former colleagues, namely, either Ms Indu Bura (“Indu”) or Ms Bimla Subba (“Bilma”), or shared in the WhatsApp group(s) of her former colleagues, extremely useful for explaining the layout and the condition of the Cleaning Room at or around the time of the Accident. As most of the photos were taken by her former colleagues within a few days/weeks and the 2 videos were taken within 2 days after the Accident: (See summary table set out in the plaintiff’s Closing Submissions at §10), I find them most relevant and helpful in judging the true condition of the Cleaning Room on the day of the Accident.

D.1.3 Layout of the Cleaning Room

66.  It is not disputed by the defendant that the Accident allegedly took place in the Cleaning Room which was located at the “back of the house” of the Restaurant. This is an area which could not be seen by the customers as it was behind the “show kitchen” and bar area. As the name itself suggests, the Cleaning Room is an area dedicated for cleaning and storage only. Cooking and preparation of food did not take place inside the Cleaning Room. They took place in the “show kitchen”. The dining area or the “front of the house” is situated at the other end of the Restaurant by the side of the “show kitchen” and bar.

67.  The Cleaning Room can be found on a layout plan exhibited to Chan’s witness statement (“Chan’s WS”) at [C/458]. It has also been outlined in red by Au, the deputy restaurant manager of the Restaurant at the time of the Accident in [Exhibit D-3].

68.  Basically, the Cleaning Room was an upside down V-sharp room with cold storage units (including freezers and refrigerators for storing different food items) located along the left hand side of the entrance, with washing basins and dishwashing machines on the right at the wider and open end of the room. At the top and narrow end of the V-shape room, there were some open shelves where pots and kitchen utensils were stored.

69.  Despite the fact that Chan in her deposition evidence stated that “trolleys, large rubbish bin and kitchen utensils” were not stored in front of the Freezer as alleged by the plaintiff, this has been clearly contradicted by the photos and the videos taken by the plaintiff’s colleagues within days/weeks after the Accident. In those photos, for example [C/201] and [C/202] which the plaintiff stated to have taken within a few days of the Accident and shared amongst her former colleagues’ WhatsApp group, 2 stacks of large plastic trays on wheels (come up to about 2 meters in height) which were used to store defrosting dough can be seen placing right in front of the Freezer and the refrigerator (which was used to refrigerate chilled, non-frozen, sauce packages) right next to it (“the Refrigerator”). In fact, in most of the photos taken by the plaintiff’s colleagues within the first few days after the Accident, these stacks of large trays which were used to defrost frozen dough overnight can be clearly seen being placed right in front of the Freezer and the Refrigerator. Often 12-13 trays were stacked on top of each other and can reach as high as top of the Freezer or the Refrigerator which was about 2 meters tall. However, they might be bulky but not necessary heavy as they only contained frozen dough and ice cubes and were placed on a wheeled metal base, which made moving them around relatively easy.

70.  In most of the photos produced by the plaintiff, at least 2 stacks of such trays could be seen placing right in front of the Freezer and Refrigerator, one in front of each respectively, making moving them out of the way necessary before one can open the door of the Freezer or the Refrigerator and reach the contents inside.

71.  As pointed out by the defendant, the brand of the Freezer used at the time of the Accident was “Koldtech”. It was placed closest to the entrance of the Cleaning Room on the left and adjacent to the white tiled wall with a fire alarm affixed to it. According to the “Koldtech” brochure, the dimensions of the Freezer were 68 cm (length) x 81 cm (depth) x 200 cm (height)[4]. A photograph of the “Koldtech” freezer used at the time of the Accident can be found at [C/266]. It was a reach-in freezer with an upper compartment and a lower compartment with 2 separate doors, although it was subsequently confirmed by various witnesses, including the plaintiff, that there was no internal partition separating the 2 compartments. It was supposed to be equipped with an automatic defrosting system.

72.  According to a “bird eye view” photo produced by Chan in her witness statement, the open area in front of the Freezer was approximately 146 cm in width and 157 cm in depth: (See Exhibit “CMK-10” at [C/466]). From the perspective of this particular photo, it appears that the drainage outlet was located on the right hand side of the Freezer (in front of the Refrigerator which was on the right of the Freezer) and opposite to the rubbish bin. The defendant therefore suggests that, if one was facing the Freezer, the distance between the right side of the Freezer and the long horizontal edge of the drainage outlet (parallel and closest to the Freezer) was about that of the length of 2 floor tiles. The defendant further suggests that the dimension of each floor tile is approximately 21 cm (ie about 8.26 inch) x 21 cm by referring to Exhibit “CMK-12” [C/470]).

73.  However, I think the above may not be entirely correct and may be even a little bit misleading for several reasons.

74.  First, the photo relied on by the defendant to measure the distance between the drainage outlet and the Freezer ([C/466]) was not a contemporaneous record as the cover of the drainage had already been replaced by one with a metal grill (with small square holes in between for draining of water) rather than some ceramic tiles with gaps in between (as shown in [C/468] for example).

75.  Second, while the length of the drainage outlet was 164 cm and its width was 21 cm by measuring the “inner” dimensions of the aluminum frame which contained the ceramic tiles or metal grill (see Exhibit “CMK-12” at [C/470]), it can be seen the tiles are slightly smaller than the metal fame itself and should be at 20 cm x 20 cm which I understand to be the standard size for such ceramic tiles. This can be confirmed by another photo taken with the new/replaced drainage covers by metal grill at [C/471] where the “outer” width of the drainage was measured at 24 cm while the “inner” width of the drainage was measured at 0.2 square metre, ie 20 cm. This is consistent with the length and width of the square ceramic floor tiles seen around the drainage. This is also consistent with the fact that ceramic tiles of the same colour and materials were used to act as drainage cover for the old drainage.

76.  Third, while the defendant’s witnesses (including Chan and Au) thought the dimensions of the Freezer and the new freezer (which replaced the Freezer some 8 months after the Accident in or about August 2017) were the same or almost the same, this does not seem to be the case if one compared the photo at [C/466] (showing the new drainage cover with metal grill and the new freezer) when the top end of the drainage was about 2 tiles (ie 40 cm) away from the middle of the Refrigerator rather than also about 2 tiles (40 cm) away from the right corner of the Freezer as shown in [C/468].

77.  [C/468] is another “bird eye view” photo of the area in front of the Freezer but taken around the time of the Accident (as depicted by the old drainage outlet which was covered by ceramic tiles rather than a metal grill). It can be observed that the distance between the right hand corner of the drainage outlet to the Freezer are different. In the contemporaneous photo (depicting the drainage cover with ceramic tiles at [C/468]), it can clearly be seen that the drainage is much closer to the edge of the Freezer than that shown in the photo taken later on, showing the new drainage cover with metal grill and the new freezer (as shown in between the top end of the drainage to the right bottom edge of the Freezer was about 2 tiles’ length in total, ie ⅓ of tile + 1 tile + ⅔ of tile).

78.  The old drainage outlet was designed in such a way that it was divided into 3 sections made of ceramic tiles and each section was about 3 tiles (of 20 cm x 20 cm) in length and width. There were gaps in between those sections in order to facilitate water/liquid clearing but those tiles were either broken or loose as shown by photos and videos taken within days by the plaintiff’s colleagues after the Accident: See for example photos at [C/200], [C/208] or videos at [TS-F] and [TS-1]. As clearly depicted in one of the video footages, the tiles became loose and shifted from their slotted in position when someone stepped on them: (See [TS-1]).

79.  According to Au, the Freezer was replaced in about August 2017, ie 8 months after the Accident.[5] According to “CMK-9” [C/464], the dimensions of the new freezer were 67 cm (length) x 137 cm (height) (“the New Freezer”). Chan in her deposition also confirmed that the width of the Freezer and the New Freezer are the same [D1/724]. Further, Au has confirmed in his oral testimony that from his observations at work, the size of the New Freezer was almost the same as that of the Freezer. Moreover, as explained by Au during re-examination, the Freezer as shown in the video “CMK-21” protruded beyond the edge of the white tiled wall because it was pulled forward in order to make room for the replacement of one of the refrigerators which was located further down the wall. That refrigerator was identified by Au as “E02” on [D/824] (the size of which was allegedly different from that of the Refrigerator). However, judging from the photos above, I do not think the Freezer and the New Freezer are of the same dimensions or at least the depth of which they were placed against the wall was not the same.

D.1.4 Defrosting of the dough

80.  In relation to the defrosting of the pizza dough, as mentioned by the plaintiff and her witnesses, who were all employees of the defendant and who were working at the Restaurant at the material time of the Accident, trays of ice cubes would be placed in between the frozen dough trays when defrosting the dough to prevent the defrosting dough from becoming too soft. According to them, for every 10 trays of pizza dough, there would be 3 trays of ice cubes placed in between them. The lowest tray would always be filled with ice cubes, then the 10 trays of pizza dough would be placed on top of it with 2 trays of ice cubes in between, making a total of 13 trays stacked up in the passageway of the Cleaning Room. The stack of defrosting dough trays with the ice cubes trays were also often placed in front of the Freezer. Throughout the defrosting process, water would drip onto the ceramic tile floor, making the Cleaning Room floor wet and slippery.

81.  When taking out containers of dough from the Freezer, as some pieces of ice would be attached to the containers, it would also lead to some water or ice falling onto the floor.

D.1.5 Defective drainage outlet

82.  It can hardly be disputed that there was a defective drainage outlet installed on the floor close to the Freezer at the material time. The video footage extract marked as “Exhibit P-1” at the trial illustrates that the drainage outlet was defective as, besides the broken/chipped tiles on top, when one steps on it, the drainage cover would move horizontally from one side to another. At the material time, allegedly, when the plaintiff had stepped and slipped on a patch of water on the floor, she then further slipped on the defective drainage outlet, which, when stepped upon, would move horizontally from one side to another, leading to the Accident. This defective drainage outlet and the tiles around it were then replaced sometime after the Accident. As seen from the video marked as [TS-J] in the e-bundle, the drainage outlet was replaced with a new metal grill cover, which is much more secure than the defective one. This begs the question of why the old ceramic tiled drainage cover needed to be replaced if it was not defective and had no problem with it at all as alleged by the defendant.

83.  As can be seen from video [TS-1], although it looked as though some force was required to push the cover from side to side, at one point in the video, it appears the person taking the video did a movement similar to slipping in which the cover then subsequently moved onto the other side. The defendant submits that the drainage cover is not a light-weight object and would require some force to move it. It would not move if a person walks normally on it, and that it was not necessary for the plaintiff to step onto the drainage outlet whilst taking the dough out from the Freezer. However, I do not think this is consistent with the video evidence.

84.  Even if it is accepted that the drainage outlet was not defective as claimed by the defendant, the way in which it is designed and placed in such an environment puts an obvious safety hazard in front of the workers in the Cleaning Room as the cover is not permanently affixed onto the drainage outlet, especially in circumstances when the floor is wet and the drainage outlet is close to the Freezer where the workers in the Cleaning Room would most likely have to walk around and step on quite often, especially when having to open the doors of the Freezer or Refrigerator to take out frozen dough or sauce packages from inside.

85.  Moreover, more probable than not, in my opinion, as the plaintiff had first slipped on a patch of water on the floor before further slipping on the drainage outlet, her foot would have travelled further from the Freezer and so it is likely that she then slipped on the drainage outlet which, according to the video evidence, would have moved, as the drainage outlet was not so far from the Freezer as seen from the video. In accordance with the video evidence and the fact that when one slips, there is some force or friction created which would push one forward, when the plaintiff had first slipped on the patch of water, she most likely, with the involuntary force from slipping, then “pushed” the drainage cover, so that it moved to the other side, leading to her back getting injured.

86.  To further illustrate the point, the defendant had replaced the old drainage outlet which would move side to side when some force was inflicted on it with a much more secure drainage outlet with metal grill like covers, which would not move even when force was inflicted upon it, and would also be more secure when someone stepped upon it.

D.1.6 Whether Crocs Bistro Clogs was suitable footwear

87.  Although the plaintiff was wearing Crocs Bistro Clogs, which were purchased by her from the defendant, at the material time, the plaintiff found such shoes unsafe. She found that these shoes would not last very long, thus, many employees chose to purchase their own water resistant safety shoes for work. Moreover, the soles of the shoes were very thin and would wear off easily. The edge of the side of the sole would also flare out and water would get into her feet.

88.  In relation to the Croc Bistro Clogs, although Chan mentioned that these shoes conform to international health and safety standards, the plaintiff submits otherwise. The plaintiff avers that the Crocs shoes provided did not have good gripping power because the design and material of it was not totally up to the standard of a pair of safety shoes.

D.1.7 Insufficient working space

89.  The plaintiff also alleges that there was only a narrow space at the area in front of the Freezer and the floor was occupied with items such as trolleys, a large rubbish bin and large trays loaded with kitchen utensils. She further alleges that there was not enough space for 2 or more persons to retrieve the containers of dough from the compartment of the Freezer at the same time.

D.2. The defendant’s case

D.2.1 The defendant’s primary case

90.  The defendant’s primary case is that they were entitled to reasonably entrust the task of retrieving a container of dough from the Freezer and placing pieces of dough onto a plastic tray to the plaintiff as it does not require special training, warnings and/or supervision, and the plaintiff could rely on her experience, skills and common sense.

91.  The defendant specifically relies on the case of Lam Ka Lok Louis v Swire Properties Management Ltd (unrep., HCPI 914/2003, 30 April 2005), in which the learned judge dismissed the plaintiff’s case. The plaintiff in that case found the door which gave access to the gondola stuck in its closed position. He could only lean over the surrounding railing of the gondola to retrieve the bucket half full of water with the intention of disposing of the dirty water. While leaning over the railing and in the process of lifting the bucket out, the plaintiff sprained his lower back. Suffiad J dismissed the plaintiff’s case for the following reasons:-

“the law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk or danger by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of”.

“I am not persuaded that the defendant was under any duty to have to give any specific instructions or training or to implement a safe method whereby the plaintiff would know how to properly dispose of dirty water in a 15-litre bucket half full”.

92.  As a Senior Pizzaiolo, the defendant claims that the plaintiff was experienced and should have been able to handle the simple and non-complicated task without difficulty.

93.  Chan, who was the deputy manager of the Restaurant at the material time and who had given her evidence in the disposition proceedings, stated that she has personal experience in retrieving plastic containers of dough from the Freezer. She did not find it to be a difficult task and no frost had built up as there are gaps between the containers and the sides of the interior of the freezer. She also stated that it was not necessary to use a lot of force. Moreover, she mentioned that there were no complaints from the plaintiff or any other employees that the containers of dough had firmly adhered to the side of the compartment by layers of frost.

D.2.2 Adequate training provided

94.  In any case, the defendant submits that the plaintiff was provided with on-the-job practical training and had received such training during her employment. In particular, the defendant had provided a “HO Transformation Training” to its staff before they were transferred to the YOHO town branch (the branch in which the Restaurant was located), and it has been proved by the attendance record that the plaintiff did in fact attend such training. Moreover, the defendant claims that there was a “training pack” for Senior Pizzaiolos which was given to the plaintiff. Further, she was also required to sit an examination before being promoted to such a position; and the plaintiff had passed such an assessment before being promoted.

D.2.3 Clean and dry floor condition

95.  In relation to the condition of the floor, the defendant submits that the plaintiff was responsible for keeping her work area neat and tidy. The placement of trolleys with stacked grey plastic trays was also under the plaintiff’s control and judgement. The defendant further submits that the floor of the Cleaning Room was in a clean and dry state at the material time. As mentioned by Chan, the floor of the Cleaning Room would be cleaned and inspected on a daily basis; twice every day, once during tea time and another before closing. The “Closing-in-Charge”, ie the staff member who was responsible for closing up at the end of the day, of the Restaurant would also not allow the staff to leave if the Cleaning Room did not pass the required standard during the restaurant closing inspection. Since the Accident occurred at around 10:30 am, the defendant says that the Cleaning Room would have passed the final cleanliness inspection before closing the previous evening.

D.2.4 Explanations for the wet floor

96.  Moreover, the defendant avers that the reasons submitted by the plaintiff on the question of why there is a wet floor can be rebutted in the following manner.

97.  In relation to the defrosting method of placing ice cubes to prevent dough from proving too fast, the defendant claims that it is a method used in the summer where the weather is hot and the temperature is high. As the Accident took place in the winter time and, thus, such method is not applicable. Although, as the dough defrosts, water droplets would form on the surface of the dough, the defendant says that it would not be possible for the water to overflow from the defrosted dough inside the grey plastic trays onto the floor.

98.  In relation to the silicone seal of the sink, it was stated in the Restaurant Audit Report dated 14 December 2016, that the silicon seal was replaced due to the presence of mould. Thus, according to the defendant, after replacement and at the material time of the Accident, there would have been no water leakage from the hand sink. During the trial, the matter has not been disputed by the plaintiff and therefore, is no longer a live issue.

D.2.5 Adequate warning notices and warnings

99.  Further, the defendant says that safety notices, manual handling guidelines and warnings were also displayed in English and Chinese on the wall near the entrance of the Cleaning Room in a conspicuous location.

D.2.6 Freezer equipped with automatic defrosting function

100.  Chan also does not agree that the Freezer was not equipped with an automatic defrosting function. She also claims that she had not received any complaints from the plaintiff or the other employees that the containers of dough had firmly adhered to the side of the compartment by layers of frost. Chan and Au, both the defendant’s witnesses and the latter being the deputy restaurant manager at the Restaurant, did not see any frost built up in the Freezer and found no difficulty in pulling out the containers from the Freezer.

E. FINDINGS OF THE COURT

101.  The following are the findings of the court for the various live issues in dispute on liability.

E.1.1 Was there any frost/frozen ice in the Freezer?

102.  As mentioned by the plaintiff, which was confirmed by Au, the Freezer was not new when the Restaurant first moved into the Yuen Long YOHO branch. At the material time, it had already been used for about 10 years prior to that. Therefore, I find it more probable than not that the automatic defrosting system in the Freezer was not functioning properly at the material time due to its age and/or lack of maintenance. This is supported by the evidence of the plaintiff and her 2 co-workers who had worked on a daily basis in the Cleaning Room and the Kitchen of the Restaurant at the time of the Accident. They were able to confirm that the automatic defrosting system of the Freezer was not working properly during the time when they were working in the Restaurant. I prefer their evidence than the managers or deputy managers who did not have to retrieve frozen dough from the Freezer on a daily basis like these workers who were required to do so as part of their jobs, particularly first thing in the morning like the plaintiff and for multiple times throughout the day like her and her co-workers.

103.  Although, as mentioned by the defendant’s witnesses, Chan and Au, that they did not see any frost built up in the Freezer and had no difficulty in pulling out the containers from the Freezer, I find their evidence on this matter relatively unreliable. My reason for this is partly due to the fact that Au is currently still working at the defendant’s company and understandably would not want to say something which may possibly “harm” the defendant’s case. This is perfectly understandable as he would want to keep his job at the defendant’s company to say the least. For Chan, she admitted that she did not work at the Restaurant on a full-time basis and would only pay a visit once a week to give her support to the new manager.

104.  But the more important reasons why I rejected their evidence being these. The 2 witnesses most likely did not find any difficulty in pulling out the containers from the Freezer as there was no frost built up when they did this task. A plausible reason for this may be that they would retrieve the dough at a time, when the Freezer had been opened multiple times and other kitchen staff had already retrieved those containers which had frost stuck on the sides or back of the containers first thing in the morning. In my view, their jobs are very different from that of the plaintiff who would be the first one to arrive in the Cleaning Room in the morning to prepare the dough for use during the day and when the frost and ice would have been accumulated for many hours overnight and have the chance of sticking to the sides of the dough containers. Further, Au and Chan most likely would also not have done such tasks as frequently as the kitchen staff who were actually working in the Cleaning Room and Kitchen, such as the plaintiff and her co-workers, due to their roles as managers at the Restaurant. This can be further supported by the fact that Chan only went to the Yuen Long branch once a week for 1-2 hours for administrative matters to help the newly appointed manager, which shows that normally she would not conduct such tasks of retrieving the containers from the Freezer.

105.  To further illustrate my point, as mentioned by the plaintiff at trial, right before the Accident happened, she had already taken out 2 containers of dough from the Freezer successfully and without any difficulty. It was only when she was taking out the third container in which she found it difficult as ice and frost had built up, sticking to the sides of the Freezer, so she would have had to use more force to pull it out of the Freezer. Not only I consider that as entirely plausible, it is also consistent with the accounts given by the plaintiff’s co-workers. In my view, this amply demonstrates the fact that if there was no ice and frost, which in my view is an inherently probable situation during the day after the overnight frozen containers had been taken out, it would be easy for the staff to take out such dough containers. However, if there was frost causing the containers to get stuck in the Freezer, it is not difficult to imagine that it would cause great difficulty and require great body strength to pull out the containers.

106.  Further, the fact that the Freezer was an old machine and was sent to the Yuen Long branch when it was first opened further supports the plaintiff’s claim that the automatic defrosting system could be malfunctioning or not working on the day of the Accident.

107.  Based on the above, I make the finding that, on a balance of probabilities, the Freezer’s automatic defrosting system was not working or not working properly at the time of the Accident and frost/frozen ice was allowed to be built up inside the Freezer. Thus, I find that the defendant has failed to provide safe and suitable equipment at work.

108.  In relation to the replacement of the Freezer, the defendant submits that it was because the Freezer was found to be out of order in 2017 and that was the only reason why it needed to be replaced. Further, it claims that the Freezer was functional and free from any defects in 2016. It also submits that the temperature recording and checking requirement achieved a full score and that Au would go and check all the temperatures of the freezers and refrigerators and would record it 3 times a day.

109.  However, I find it rather odd that the defendant have to replace the Freezer in question only a few months after the Accident had occurred if it was functioning properly as the defendant claims. The fact that the defendant had to do that strongly suggests to me that the old one was not functioning well. I also find that although the temperature recordings might have been registered at a correct temperature and up to standard, this does not have much relevance to the question of whether there was an automatic defrosting system installed or whether such system was working or not if installed. As a matter of common sense, I find that even if the temperature recordings are up to standard, it is still possible for ice and frost to build up inside the compartment of the Freezer. Thus, I find an unsafe and not suitable piece of equipment was provided by the defendant on the day of the Accident.

E.1.2 Whether the floor in the Cleaning Room was wet and slippery?

110.  The condition of the floor is one of the major factual disputes by the parties. The plaintiff alleges that she had slipped on a patch of water and it was stemmed from the defendant’s failure of providing a safe system of work.

111.  I bear in mind that a wet and slippery floor could be attributed to various reasons in this case, which I shall go through one by one.

112.  First, I find that the general condition of the floor in the Cleaning Room was wet and slippery. This finding is supported not only by the plaintiff and Au’s evidence, but also more importantly by the contemporaneous evidence in the form of photos and videos taken by the plaintiffs’ co-workers.

113.  The plaintiff confirmed that a cleaning inspection of working areas including the Kitchen and Cleaning Room had to be passed before the close of business every day, and it was made stricter after the Accident. She stated that closing the section and cleaning the floor after their work of the day was supposed to be the practice in compliance with the defendant’s cleaning policy, but it depended on the business of the day. If the staff were too busy, the staff would only mop around, and only the Kitchen would be cleaned however busy the staff were. There could be occasions where the conditions of the Cleaning Room were not cleaned or inspected.

114.  The plaintiff also stated that the cleaners were responsible for the cleaning of the Cleaning Room whereas the kitchen staff, including the plaintiff herself, were responsible for the kitchen cleaning. Au confirmed it was the case in his evidence. Thus, based on their evidence, I find the cleaner should in theory have cleaned the Cleaning Room before they left, but it was unknown as to whether they did clean it the night before the Accident. Based on the plaintiff’s evidence, it seems to me that it was not uncommon for the cleaners leaving the Cleaning Room uncleaned overnight. In fact, this is consistent with Rai’s evidence that “sometimes it would be dry and clean but sometimes because of the defrosting dough there would be some water”. It also corroborated with Thapa’s evidence that the floor was always slippery and the sources of water on the floor include melted ice, defrosting dough, and water from the night before which had not been dried yet. In my view, these lend support to the conclusion that if the cleaning of the Cleaning Room was done before the closing of business, the floor would be dry and clean; and when it was not done and the water from the defrosting dough was left on the floor, the floor could be wet and slippery.

115.  The plaintiff told the court that generally speaking when she started her work in the Cleaning Room and found that the cleaning was not done properly, she would first tell the cleaners. Yet, usually the cleaners would get angry and refuse to listen. Then, the plaintiff would tell the manager. There were occasions where the plaintiff cleaned the Kitchen herself if cleaning was not done properly, but not the Cleaning Room. In this regard, I do not consider that the plaintiff was trying to shift the responsibility to the cleaners nor blame them. In my view, she only tried to honestly describe the practice in her workplace. After all, it is not the plaintiff’s duty to clean the Cleaning Room. In my judgment, the plaintiff should not be held liable for the risk of slip and fall caused by the cleaning and inspection improperly done by her colleagues.

116.  Second, I find that the system on inspection of cleanliness is inadequate. There was no formal system on inspection of cleanliness. There was only ad hoc or informal way of inspection where the manager would take a photo and send it to the WhatsApp group for his colleagues’ attention as confirmed by Au in his evidence. There was neither guideline on how to decide when the cleaning should take place. Basically, the practice was that the cleaning would depend on the condition. It is further confirmed by Au’s evidence that only when a large amount of water was found by his colleagues, cleaning would be conducted immediately. What further supports my finding is his confirmation that it was normal to have some water in the Cleaning Room since they were “in the condition of catering business”.

117.  In relation to the cleaning of spillage, I tend to accept the plaintiff’s evidence rather than what was stated in the Loss Adjuster’s Statement taken by Lee. The plaintiff told the court that kitchen staff were trained in the induction programme provided by the defendant to clean spillage immediately. However, they were supposed to clean the sauce that caused the floor oily, rather than water. I do not consider that the plaintiff has made an artificial distinction as alleged since the plaintiff agreed that it was normal to have a little water on the floor in the Cleaning Room. In my view and as a matter of common sense, what would cause a more serious slip accident and requires immediate cleaning would be oily substance.

118.  In relation to the Loss Adjuster’s Statement, the plaintiff averred that the questions she was asked were whether there had been flooding and whether there was oil or sauce spillage in the Cleaning Room. Rather naturally and reasonably, she would say no to these questions when there were only patches of water on the floor. However, I find it was neither reasonable nor logical that the plaintiff would answer the loss adjuster that “the floor was dry, no water/oil in the floor. The floor was not slippery” when the slippery floor was the very basis of the plaintiff’s claim. Lee’s evidence is further discredited when she disagreed with questions from the plaintiff’s counsel that both the plaintiff and Thapa had never told her that the floor was dry and there was no oil on the floor. I do not think that accords to the general condition of the floor as shown in the contemporaneous evidence.

119.  Of course, it is not to say that the defendant has the duty to provide a 100% hazard-free condition for the plaintiff. The law does not require that. However, it is obvious in the circumstances of this case that the defendant has failed to show reasonable efforts to have been made in its cleaning system. At such, I find the defendant has failed to provide safe place of work for the plaintiff and her co-workers by allowing a wet and slippery floor to be present in the morning after the dough was left to defrost overnight.

120.  Third, as mentioned earlier, defrosting of dough was one of the main sources of the wet and slippery floor in the Cleaning Room. Both the plaintiff’s and the defendant’s witnesses basically agreed that the trays of ice and trays of dough would be arranged in an alternative manner. This practice was to prevent the dough from early fermentation. The plaintiff told the court that it was the practice and how they were taught to leave the dough overnight and defrost. It was also in Thapa’s witness statement that the night shift staff member needed to take the containers of dough out from the freezer and put the containers of dough in the Cleaning Room. To prevent the dough from becoming too soft, trays of ice cubes would be put under or above the containers to ensure the dough is maintained at a certain temperature. The left-over ice cubes will be discarded by workers in the next morning. Au also agreed that when the dough in trays were defrosting, water would emit onto the floor, although he asserted that the amount was small.

121.  Both the plaintiff and Au further agreed at the time of the Accident it was a busy time for the defendant. The plaintiff told the court that when Christmas was approaching, more dough would be prepared for the use on the next day. Ice was used since there was no air conditioning in the Cleaning Room. In winter time, 3 to 4 boxes of ice were used and ice would be kept in the container. Au explained the practice of placing ice between trays of dough. The dough that was ordered in advance came from one of the suppliers of the defendant. When the suppliers delivered the dough in the morning, the dough was contained in carton boxes without the use of ice. The chefs would decide to place ice between trays according to the turnover estimated and temperature of the next day. He confirmed that the Cleaning Room was stacked with trays of defrosting dough around the Freezer. Common sense will tell us that water would naturally emit onto floor from the defrosting dough and accumulated on the floor, making it wet and slippery.

122.  Although Chan and Au, of which both of whom are the defendant’s witnesses, mentioned that they had not received any complaints from the plaintiff nor other employees regarding allegations of the wet floor, the defective drainage outlet and the frost building up in the freezer, I find that both of them are not believable on this issue. I find the plaintiff’s evidence more convincing and probable on this matter. The plaintiff stated that she often lodged complaints to the defendant about the unsafe work environment but the defendant did not do anything immediately to correct or improve the situation. She had also complained to the manager, assistant manager and supervisors previously that there should be a cleaner in the morning but the restaurant manager would just let it in from one ear and let it out another whenever the staff reported to them about it. Her evidence on this is correlated by Rai and Thapa’s evidence.

123.  To conclude, in my judgment, both the general condition and the specific condition on the day of Accident were far from safe. Patches of water on the floor in the Cleaning Room was not uncommon and only to be expected due to the unsafe system of defrosting the defendant has adopted. I therefore find that it is more probable than not that there was water from the defrosting dough left on the floor which made it wet and slippery at the time of the Accident. It has also made the work place become unsafe.

124.  Based on the above, I find the defendant has failed to provide a safe place of work and a safe system of work.

E.1.3 Whether the drainage outlet was defective

125.  I now turn to the issue of whether the drainage outlet in the Cleaning Room was defective.

126.  Mr Khaw SC in his closing submissions gave a detailed description of the drainage outlet in question. I would also refer to my description contained in §§72-78 above.

127.  In relation to the movability of the “old” tiled drainage cover, Au agreed that the “old” tiled drainage cover could move if force applied. However, he disagreed that if someone walked on the “old” cover, it would move. He explained that the gaps of the cover were for conducting cleaning work and the tiled cover could only move horizontally, so normally it would not move. Another reason was that with the design of the drainage outlet, cements was fully laid over there.

128.  I am afraid that I am not convinced by these explanations at all. In my opinion, the only possibility where the cover of the drainage outlet would not move was when the cover is completely and firmly affixed to the outlet, which was not the case here as clearly shown in the video produced by the plaintiff. With the “old” tiled drainage cover, when a person incidentally slipped and slided in the direction of how the tiles could move, it is when a safety hazard could happen. In my view, the defect in question did not come from the broken or chipped tiles itself but the movable and swaying of the drainage cover.

129.  In relation to the replacement of the drainage outlet, witnesses from both sides agreed on this. At trial, the plaintiff was shown a photo of “old” drainage outlet covered with a tiled drainage cover, and a photo of “new” drainage outlet, the cover of which was metal grill-like. The plaintiff recalled that the photos of the “old” drainage out were sent to her 1-2 weeks after the Accident and that of the “new” drainage were sent to her in 2018. They both covered the same drainage area. Au agreed that after the Accident, repair works for the damaged tiles of the “old” drainage outlet cover was done and the “old” one was replaced by the “new” metal grill-like cover.

130.  According to Au, the replacement happened upon request of him, his manager, and the auditors of the defendant. Since the defendant is an international company, a written request via email was sent to the operation manager. I was told that the reasons of why Au and the auditors requested for a replacement by a metal grill-like cover was contained in the email, yet the email was not adduced as part of the evidence in this case. Instead, Au verbally explained that the replacement took place because the cover was found to be very heavy, and the tiles were easily damaged. Accordingly, according to Au, the auditors would deduct marks from the audit report of the Yuen Long branch. I do not accept such explanation. I am of the view that the defective drainage outlet was replaced because both the managers at the Restaurant and the auditors realised that it had created an obvious danger when the tile covers become moveable when workers stepped or slipped on them.

131.  The fact that repair and replacement work took place soon after the Accident in fact supports my finding on this issue. They must be aware that the drainage outlet was defective. They must have acknowledged the risk of safety hazard imposed by the “old” drainage tiled cover that could sway side-to-side when someone steps on it, and therefore it took preventive measures to avoid similar accidents from happening in the future.

132.  In relation to the location between the Freezer and the drainage outlet, the defendant asserted that there was a considerable distance from the drainage outlet. In the event of any slip, the worker who slipped would have been blocked from reaching the drainage outlet since the opened freezer door which opened from the left and when opened, it would be on the right hand side of the worker. I have already dealt with the matter when discussing the layout of the Cleaning Room in §§66-79 above. I do not need to repeat them here. In my judgment, it is clear that distance between the “old” Freezer and the “old” drainage covers were closer than what the defendant cares to admit.

133.  In the disposition proceedings, Chan was shown the video TS F. In the video, it was shown that the freezer door could be opened to 180 degrees, despite her disagreement. In my view, it is not difficult to imagine that a worker trying to open the freezer door to retrieve the large container trays would step on the drainage outlet. After all, it was just a distance of 42 cm (even according to the defendant’s calculations), which was within the ambit of a couple of footsteps of an adult, particularly when the person was stepping or tripping backwards as allegedly happened to the plaintiff during the Accident.

134.  Therefore, it is inherently probable in my view that when the plaintiff slipped on a patch of water when retrieving a container stuck on the sides of the Freezer, in order to regain her balance, she would try her best to plant her feet on surface within a few steps, and as such she would easily be able to reach the drainage outlet when stepping back. The loosened drainage cover would cause her to slip further away, likely resulting in her injury. I find this is inherently probable in the circumstances of this case and I find that, on a balance of probabilities, that was exactly what had happened in the Accident. By allowing this to happen, I find the defendant has failed to provide a safe place of work for the plaintiff and her co-workers.

E.1.4 The plaintiff’s loss adjuster’s statement

135.  During the taking of the Loss Adjuster’s Statement, the plaintiff had allegedly told Lee that the floor was dry, not slippery and that there was no water or oil on the floor. However, as mentioned, I find Lee an unreliable and incredible witness. Not only she was very defensive when being cross-examined at trial, it is clear that most of the contents of the statement could not have come from the plaintiff herself. Through my own observations during the 2½ days when the plaintiff gave her oral evidence, it is obvious that she could not speak English that well and speaks with a thick Nepalese accent when she does. The plaintiff claims that she would only be able to communicate with her colleagues in simple English at work and since all the workers who belonged to the kitchen team were Nepalese, she would communicate with them in Nepalese. This has been confirmed by the defendant’s own witness, Au, in his evidence.

136.  In relation to the interview with Lee, the plaintiff says that there were many communication problems between them during the process of taking the statement. Whereas, Lee said that she did not experience any difficulties communicating with the plaintiff at all during the interview.

137.  I have little difficulty in rejecting Lee’s claim on this for several reasons.

138.  First, it is clear that English is not both of their mother tongue. Although Lee obviously can speak (and most likely write) the language better than the plaintiff, I would not describe her English as native or even up to a very high standard at all. Further, I find both the plaintiff and Lee spoke English with their own respective strong accents and mispronunciations. There was also no translator present during the interview. Based on the assessment of Au, who had worked with the plaintiff for a long period of time, her command of English was at most basic and limited to simple words or phrases only. Unlike Au, Lee had only met the plaintiff for the first time and spent at most an hour or so with her during the interview. Hence, I do not think her assessment that she had experienced no difficulties in communicating with the plaintiff during the interview could be relied on at all. I find that, more likely than not, the plaintiff was not able to understand or able to talk to Lee that well.

139.  Second, as mentioned by the plaintiff in her evidence, due to such communication problems, the manager of the Restaurant, Kang, offered her help during the entire interview process. Although Kang did ask and receive answers from the plaintiff initially, she then continued to have the conversations in Cantonese with Lee. As the plaintiff stated at trial, most of the information at this interview was provided by her manager, Kang. I have no reason to doubt the plaintiff’s evidence on this at all.

140.  Kang had also previously made a report on the details of the Accident to her employer and had misunderstood the plaintiff’s account of the Accident and stated as follows:-

“Shushma was doing the opening shift in PEHO. As she was arranging the dough and picking up the box, she accidently twisted her back when standing up”.

141.  In my opinion, this would amply demonstrate the possible misunderstanding between her and the plaintiff and also partly explain the inconsistencies of accounts between what the plaintiff had apparently “told” the loss adjuster and what she had mentioned in her other documents. But, as said, the defendant has not produced Kang as a witness in this case and has not explained why it was not able to call her. I am entitled to draw an adverse inference against the defendant on this and would do so in the circumstances.

142.  Third, as mentioned by the plaintiff at trial, in her statement to Lee, the word “posture” was written down by Lee in the statement. However, the plaintiff says that she did not use that word as she did not even understand what that word meant. She also did not say the phrase “I squatted down” which was recorded in her statement as she only understands the word “down” but not the other words. There are further examples of words and phrases the plaintiff did not say nor information volunteered to the loss adjuster during their interview. I accept her evidence on this as I find her English was not at such level that those words were within her vocabulary.

143.  Fourth, a further example which illustrates the point is when Lee allegedly recorded in the statement that the plaintiff had told her in her own words that “I don’t remember my posture” (see [C/547], line 5 of the statement). Lee insisted that the word “posture” was used by the plaintiff and not by her. I find that could not be the case at all as I do not think the plaintiff’s English was at such a level that she understood the word “posture”, let alone being able to use it on her own initiative in her statement.

144.  When further pressed by the plaintiff’s counsel under cross-examination, Lee then changed her evidence and suggested that it was in answering a question she posted to her that the plaintiff used the word “posture” in her answer. When asked by the court what was the exact words she used in the question, Lee answered by saying she asked the plaintiff: “Do you remember your posture at the time of the accident?”. However, Lee had pronounced the word “posture” as “post-ture” several times when asked to do so. She even suggested that the plaintiff had answered her with the same pronunciation when the plaintiff told her that “she did not remember her “post-ture” and that is why she took it that the plaintiff could understand her.

145.  I have no hesitation to reject such preposterous evidence from Lee. If she was not even able to pronounce the word “posture” properly, how would she expect the plaintiff, who is not fluent in English, to be able to understand her.

146.  The same pattern of questions and answers allegedly repeated itself throughout the taking of the statement according to Lee. I am afraid that I do not find that credible at all. Considering the plaintiff and Lee’s English abilities and communication problems, as well as the fact that I find the plaintiff as an honest and credible witness as compared to Lee who is incredible, I find that the plaintiff, more probable than not, was telling the truth. I find that the contents of the Loss Adjuster’s Statement, although signed by the plaintiff, could hardly be understood by her. I find the information contained therein was mainly if not entirely dictated by Lee after discussing the possible causes of the Accident with Kang, the manager of the Restaurant.

147.  In my judgment, it seems to be unreal and most improbable to suggest the working environment of the Cleaning Room at the material time of the Accident was free of defects and wet and slippery surface and that the drainage cover was all secured and stable. They are simply contradictory to the contemporaneous photos and videos taken by the plaintiff’s colleagues which were shared in their WhatsApp groups in the days/weeks immediately after the Accident. They showed a crowded, wet, narrow work place which was filled with trays of dough and/or carton boxes in front of the Freezer and the Refrigerator. I have no difficulty to reject the defendant’s argument that it was the plaintiff who had brought this Accident upon herself, which definitely does not seem to me to be the case if one looks at all the objective evidence made available to the parties after the occurrence of the Accident.

148.  Fifth, it is clear to me that the contents of the Loss Adjuster’s Statement did not come from questions and answers sessions in English between her and the plaintiff as Lee would like the court to believe. Rather, I find the contents of that statement was more likely being dictated by Lee, mainly if not entirely, with the help and input of Kang. This is not only consistent with the plaintiff’s evidence that Kang was present throughout the taking of the statement and most of the conversations had taken place between Kang and Lee in Cantonese only, but also supported by the fact that Lee must have interviewed Kang independently at or around the same time as when purportedly taking the statement for the purpose of preparing the investigation report dated 25 January 2017, which was submitted to the insurer with a cover letter at or around that date.

149.  The reason being that there is a whole paragraph on page 2 of the investigation report (which consisted of 8 sub-paragraphs from a to h. that occupied more than half of the page[6]) which summed up what Kang supposed to have told her in relation to the system and place of work. Yet, Lee claims under cross-examination that she had not obtained a written statement from her as she thought it was not necessary. She also did not think that Kang was an important witness who was as important as Thapa from whom she had taken a statement.

150.  I do not find that believable at all. I find that Lee had either deliberately not taken a statement from Kang or if she had taken one from her it was deliberately not attached to the investigation report to the insurer. But what is significant from the summary in §2 of the investigation report is that she must have either talked to Kang or interviewed her at length. Otherwise she would not have been able to come up with such details regarding the system of work and the Accident. Incidentally, Lee has also failed to disclose the covering letter (which she confirmed was signed by her) that was sent to the insurer together with the investigation report. So we do not know what was said by her in the cover letter.

151.  Last but not the least, regrettably, I find Lee to be a very defensive and unreliable witness who clearly has her own agenda and interests in the outcome of this case. While merely describing herself as a “loss adjuster” in both her witness statement in the present proceedings and the statement, Lee had never disclosed to the parties or to the court the fact that in fact she was the owner and sole director/shareholder of the loss adjuster company. In fact, she admitted that she had no other loss adjuster working with or for her in her company at the time of the Accident. She was literally a “one-woman band”. All the above evidence has only come out at the end of her evidence when the court made enquiry of her relationship with the company, which she purportedly worked for as a “loss adjuster”. I find that she was deliberately trying to underplay her role in the taking of the statement.

152.  While Lee claimed under cross-examination that “the purpose of the insurance company was instructing me to record what they said about the accident and not instructing me to judge what was true or what was false”, I regret to find that Lee did exactly the opposite in this case. I find that the version contained in the Loss Adjuster’s Statement about how the Accident in fact had mainly, if not exclusively, come from Kang or Lee and not the plaintiff.

153.  In my judgment, this case probably did not have to come to trial at all, at least not on the issue of liability, had a fair, objective and accurate account been taken by Lee from the plaintiff. Of course, the defendant and/or its insurer had rightly relied on the contents of that statement in order to decide whether to challenge the plaintiff’s account of the Accident. Unfortunately, due to the inaccurate and rather misleading nature of how the Accident was described in that statement, it led to a “wild-goose chase” that eventually climaxed with a 6-day trial involving much unnecessary legal costs and judicial resources.

E.1.5 Whether adequate training had been provided to the plaintiff?

154.  In relation to the training the plaintiff had received, it has been submitted and proved that the plaintiff did attend the “HO transformation training”, she did receive a “training pack” for Senior Pizzaiolos and she did sit an exam before being promoted to Senior Pizzaiolo.

155.  However, as the plaintiff has mentioned at the trial, of which the evidence I would accept, that during the 2 days of training before the exam, she did not understand everything as it was conducted in English and she did not understand some words.

156.  Moreover, although there was a “training pack” provided to Senior Pizzaiolo’s and even thought the plaintiff was in fact given such a document which contained information of operational knowledge such as kitchen management, no one had asked her to study the information before the exam. In any event, the plaintiff would most likely also not have been able to read and understand the material had she been told to read it.

157.  In regards to the exam, the plaintiff had failed the exam to be a Senior Pizzaiolo twice before passing on her third try as she was offered help by the manager the third time. According to the plaintiff, if they did not know the answers or were unsure if they could do it, someone from the defendant’s company would check up on them and would teach them and help with their answers to ensure that they passed. Since the plaintiff could only understand a small portion of the multiple choice questions in the exam, she had to ask for help (and did receive them from her seniors), and which was the reason she was able to pass in the end.

158.  Taking the plaintiff’s background into consideration, I do believe her account as her communication skills as well as knowledge of the English language are quite limited and only limited to simple English. In my view, she would not have the ability to truly understand the training provided, including the information contained in the training pack as well as questions she was asked and did manage to answer correctly in the exam.

159.  Thus, based on the above, I find the purported training provided to the plaintiff was inadequate.

E.1.6 The Croc Bistro Clogs

160.  What further aggravates the risk in this case was the lack of adequately protective footwears. Kitchen staff were required to wear slip-resistant shoes. What was provided to the plaintiff was a pair of Bristo Clog Crocs. The defendant averred that the shoes provided to the plaintiff was with water proof and anti-slip features whereas the plaintiff submitted that the shoes had poor gripping power that could not and would not prevent one from slipping on a highly slippery floor in addition to an uneven and swaying surface of the defective drainage outlet.

161.  There is no evidence showing that the Crocs in question were able to prevent a slip. It was not a unified requirement for the defendant’s employees to wear Bristo Clog Crocs. It has been confirmed in Chan’s disposition that the Crocs shoes were not provided by the defendant to its employees. Instead, the defendant only provided its employees a time offer of purchasing the Crocs shoes with discounted price.

162.  In relation to the Croc Bistro Clogs, although Chan mentioned that these shoes conform to international health and safety standards, the plaintiff submits otherwise. The plaintiff avers that the Croc shoes provided did not have good gripping power because the design and material of it was not totally up to the standard of a pair of safety shoes.

163.  The plaintiff states that the Crocs would only reduce her chances of slipping and falling on an ordinary floor condition and was not a guarantee that a person would not slip on a highly slippery condition due to the poor gripping power and the soft feature of the material used. She claims that the soft feature would also cause a person to be unable to stand firmly on the floor and pose a slippery hazard when stepping on the uneven and swaying surface of the defective drainage outlet.

164.  The plaintiff had also replaced her pair of Crocs twice at the material time and, as mentioned by the plaintiff’s witnesses, many of the workers chose to wear other safety shoes. Since such shoes, although not paid for by the defendant, were offered to the workers at a discounted price, this would most probably be the reason why the plaintiff bought them from the defendants. The plaintiff would also think that since this option was offered by the company to them, it would most likely be a relatively good pair of safety shoes. However, in my view, the plaintiff makes a valid point when she said that such shoes are soft and do not have a good gripping power (which is added on by the softness of such shoes), which is not ideal and would lead to slip and fall accidents in working environments such as where the plaintiff was working, as the floor is often wet and slippery.

165.  Looking at the Crocs’ information as shown in Exhibit “CMK-5”, there are no shoelaces and its design is somewhat similar to a slipper. Most likely than not, one’s feet, when wearing such shoes especially in sweaty or hot conditions or in wet and slippery conditions, would move forwards and backwards easily inside the shoes, showing the lack of grip one has when one slips as compared to a normal pair of sneakers where there are shoelaces to fit the shape of the foot and to secure it inside of the shoe, increasing the gripping power. The front of the shoe is also rounded and quite big, further illustrating how one’s feet would most likely move around inside the shoes and there wouldn’t be much gripping power, especially when one is walking around in such a working environment and where the floor is a ceramic tile floor with no anti-slip elements (making it more slippery compared to other floor materials when water is spilled onto it).

166.  On this issue, I would much prefer the evidence of the plaintiff and her co-workers who had first-hand knowledge on the use of the Crocs shoes in the hot, wet and slippery condition of the kitchen than on some brochures produced by the defendant or some executives in the management team of the defendant who decided the matter in the comfort of an air-conditioned office.

167.  In the circumstances, I find the footwear provided or recommended to the plaintiff and her co-workers were not suitable or sufficient for the purpose.

E.1.7 Placing of the trolleys

168.  Although the defendant submits that the placement of trolleys with stacked grey plastic trays was under the plaintiff’s own control and judgment, the plaintiff evidence is that there was only a narrow space at the area in front of the Freezer and that the floor was occupied with various items such as the large rubbish bins and trolleys. In this regard, I notice from the contemporaneous photos and videos produced by the plaintiff that the Cleaning Room is quite small and the area is quite narrow. Although the plaintiff in theory could have moved the large trays of defrosted dough which would normally be placed in front of the Freezer, there is clearly only a limited amount of space in which she would be able to do so.

169.  Moreover, as seen from the video evidence ([I/1305], which shows an employee taking out a plastic container from the dough freezer, the workers would normally only move the trolleys to the side when taking out the dough from the containers. And they would put it back in front of the Freezer afterwards. This routine most likely would have been their own internal work practice and something they routinely did without others correcting them or telling them where they could move the stacked trays or other items to. This seems to be an efficient and convenient way to move the trolleys (where 12-13 trays of dough were stacked on top) aside from the front of the Freezer and the Refrigerator. However, if the workers were to do that the first thing in the morning, it is almost unavoidable that they would have to step on the wet and slippery floor surface as the water collected from the ice which was used to help to defrost the dough overnight would inevitably gather at the bottom of the trolleys and the surrounding area.

170.  I find the above have partly contributed to the unsafe place of work and unsafe system of work.

E.1.8 Whether it was busier than usual on the day of the Accident?

171.  Furthermore, as mentioned by Au and Chan, since it was Christmas time, larger amounts of food supplies were being delivered to the Restaurant leading to passageways in the Kitchen and Cleaning Room to be crowded. Therefore, not only would it be hard for the plaintiff to get the containers from the Freezer and to work and walk through such a crowded space, but it would also be impossible, even if she could call another staff member, to help her to pull the container out from the freezer. This is especially so where during non-holiday seasons, it would already be too narrow for 2 or more persons to retrieve containers of dough from the freezer at the same time, let alone during Christmas time, when the Accident occurred.

172.  I accept the above evidence from the plaintiff. I find that it has contributed to the defendant’s failure to provide a safe place of work to the plaintiff.

E.1.9 Was the retrieving of dough containers a simple and non-complicated task?

173.  It has further been submitted by the defendant that even if no training was provided, it would not matter as the plaintiff was an experienced “Senior Pizzaiolo” and so she should have been able to handle the simple and non-complicated task of retrieving a container of dough from the freezer without difficulty as it does not require any special skill or training.

174.  However, I believe the questions of whether such a task is simple or not and whether it requires training need to be explored further.

175.  The plaintiff not only had to reach up or out to retrieve the containers of dough, but the containers of dough would sometimes be firmly and steadfastly adhered to the sides of the compartment due to the layers of frost/ice built up. This would also be quite hard and would most likely require some skill and teaching as to how the staff should retrieve containers from such a height, especially in circumstances where the containers are stuck in the freezer and what to do in such circumstances; as the instinctive response would most likely be what the plaintiff had done in this case, which was to pull the container with all her might.

176.  The degree of difficulty would also be increased by the fact that the plaintiff and her colleagues would have had to perform such a task on wet and slippery floor, especially in close proximity with the defective drainage outlet on the floor. Therefore, although the task of simply retrieving a container of dough without any frost stuck to it and without a slippery and wet floor might have been a simple task, with the added difficulties and the working environment and circumstances in which the plaintiff faced at the material time, it is quite hard in my view to argue that such task was simple and non-complicated and would not require any skill or training as it would and did in fact cause a work injury due to the defendant’s lack of training and awareness of such issues. Although it has been proved that some practical training had been provided, the defendant, by submitting that such a task is simple and non-complicated, and where it has not been proved that training for such a task had been conducted, it illustrates a breach in their system of work and shows that they had failed to teach their employees a crucial skill which they would need to use daily.

177.  Although the defendant did submit that there were safety notices displaced on the wall near the entrance of the Cleaning Room, they were in Chinese and English, which would not be very helpful and would serve little to no purpose to the plaintiff and the other workers as most of them are Nepalese with only a basic understanding of the English language and most likely no knowledge of the Chinese language.

E.2 Summary on the court’s findings on liability

E.2.1 A defective system of work

178.  In my judgment, based on the above discussion, the system of work the defendant allowed the plaintiff to work in on the day of the Accident was unsafe as the floor was wet and slippery (which was mainly due to the overnight defrosting dough process); combined with the issue caused by the design of the old drainage outlet; and the Freezer generating layers of ice and frost.

179.  Inevitably, by placing layers of ice within the stacks of defrosting dough overnight would lead to water dripping over the containers or would even lead to the outsides of the containers being wet and subsequently the water would drip onto the floor below as the ice trays would melt overnight. This is especially so where more dough would need to be defrosted overnight, so, most likely, more ice trays were used, and it has been established above that ice trays would still be used in the winter since there was no air-conditioning or air in the Cleaning Room.

180.  Therefore, even if there were cleaning arrangements in the night before closing, and even if the cleaners did clean the floors before closing the previous night, it is inevitable that patches of water would be found on the floor of the Cleaning Room in the morning when the plaintiff comes in for work, and where no cleaners would have arrived yet. The patches of water would especially be situated in front of the freezer, as that was where the staff was taught to place the stacks of defrosting dough.

181.  Therefore, I find the system of work was unsafe and defective.

E.2.2 As unsafe place of work

182.  Further, the above in my opinion illustrates a major flaw in the defendant’s system of work and also a safety hazard as it would lead to the floor being slippery and wet in the morning where no cleaners would have arrived at the Cleaning Room yet. Further, as mentioned above, it seems that a wet floor was often the “normal” working environment or condition in which the plaintiff and her colleagues found working in on a daily basis, which is definitely not safe for the workers. As the plaintiff and other employees had complained to their supervisors and managers, nothing was done about it. It shows that, more likely than not, the defendant had known about such working condition but let it continue in such a way.

183.  Moreover, the defendant by placing a drainage outlet with a moveable drainage cover, has allowed another safety hazard to exist in the Cleaning Room. Since the old drainage outlet was quite close to the Freezer, and that there would be an area in which the staff would mostly walk around; together with the additional wet and slippery floor, it would be reasonable for the defendant to have foreseen that their employees would have slipped on the moving drainage outlet, especially on a wet and slippery floor, as had happened to the plaintiff in the present case during the Accident.

184.  Therefore, I find the defendant has failed to provide a safe place of work.

E.2.3 Inadequate training and supervision

185.  Based on the above discussions in §§154-159, I also find the training and supervision provided to the plaintiff was inadequate.

E.2.4 Conclusion on the defendant’s liability

186.  Therefore, I find the defendant liable as it has breached its duty of care to the plaintiff by failing to provide a safe system of work; a safe place of work; adequate and safe equipment; and adequate training and supervision.

187.  I therefore find the defendant liable for causing the Accident.

F. Contributory Negligence

188.  It has been submitted by the defendant that the plaintiff was an experienced Senior Pizzaiolo at the time of the accident and that, as she knew that the Cleaning Room had always been wet, she should have taken care of herself as a reasonable person in the circumstances and should be partially responsible for overlooking the water on the floor and accordingly, and failed to do the cleaning she was supposed to do.

189.  The defendant relies on the case of Pak Sai Ming v J.V. Fitness Limited [2019] HKCFI 2268. Where Au-Yeung J at §43 held that, for a frequent user of a workplace (which is allegedly wet) on each working day and for years before the accident, he should have had the foresight of a risk of slip and fall and thereby must have taken the care as a reasonable person would have, failing which he would be held liable for contributory negligence.

190.  On the other hand, the plaintiff submits that she should not be held accountable for any contributory negligence. Mr Sadhwani relies on the case of Chung Yuen Yee v Sam Woo Bore Pile Foundation Ltd [2001] 4 HKLRD 580, where Tang VP held at §10, that the court should be slow to find any contributory negligence where the contributory negligence alleged was the very thing which the statutory duty of the employer was designed to prevent. Further, at §11, the learned judge held that:-

“In a case involving hazardous work and where the employers provided no supervision, inappropriate equipment, indeed defective equipment, and an inadequate work force, I believe the facts will have to be very unusual to justify a finding of contributory negligence. This is not such a case. Contributory negligence against a workman is more appropriately found in cases where a worker might have worked safely, but did not do so for reasons of his own. It should rarely be found in a case where a workman was put in a situation where he had to work unsafely or risk the possible disapproval of his employer”.

191.  I tend to agree with the plaintiff’s submissions that the plaintiff should not be held contributorily negligent in the present case. Although the plaintiff had seen the patches of water on the floor, it was not only not her duty not to clean it since it was just water, it was also the “normal” condition in which the defendant had allowed her and her co-workers to work in every morning.

192.  In my judgment, the main cause of her slip was not only due to the unsafe system of work where their defrosting dough method would inevitably lead to patches of water collected on the floor in the morning, but another cause of the Accident was due to the container being stuck in the Freezer as well as the moving drainage outlet cover. These are all the factors which led up to the plaintiff’s Accident and they are all breaches of the defendant’s duties owned to the plaintiff as mentioned above.

193.  Based on the principles laid down in Chung Yuen Yee, supra, in my view, the plaintiff had done as she was told or had done what the working practice was, which was to continue to work even if there were patches of water on the floor and the floor being slippery, especially where she had made complaints but nothing was done by the defendant to rectify the environment. Moreover, in my judgment, the plaintiff was put in a situation where she had to work unsafely due to the unsafe system of work; inadequate equipment provided to her (including the Freezer, the drainage outlet, and the Crocs shoes); and the insufficient training and supervision she had received. All of which was not due to the fault of the plaintiff.

194.  Therefore, I find the plaintiff not contributorily negligent for her acts as she was simply doing what she had always done and was asked to do.

195.  In the circumstances, I find the defendant 100% liable for the Accident.

G. QUANTUM

G.1 Injuries and initial treatment

196.  Immediately after the Accident, the plaintiff was sent by ambulance to the A&E of POH, which referred the plaintiff to the Department of Orthopaedics & Traumatology (“O&T”) of the same hospital for treatments better.

197.  At the O&T, physical examination showed that the plaintiff had tenderness over lower lumbar spine region. Her right lower limb power was weaker but there was no sensory deficit or sphincter disturbance. The lumbosacral spine X-ray showed no obvious vertebral collapse or fracture. Magnetic Resonance Imaging (“MRI”) was taken and showed 4th/5th lumbar level disc protrusion with mild to moderate spinal stenosis. The plaintiff was given analgesic and has stayed in the O&T ward for 2 days. She was discharged on 24 December 2016 and referred to physiotherapy and occupational therapy.

198.  The physiotherapy treatment was commenced on 4 January 2017 and had lasted for 32 sessions untill 18 May 2017. However, according to the physiotherapy report prepared by Ms Angela Lee of POH dated 17 July 2017, the treatment did not result in significant improvement of the plaintiff’s condition. The plaintiff also underwent 17 sessions of occupational therapy at Tuen Mun Hospital (“TMH”) from 2 March 2017 to 23 May 2017.

G.2 Different private treating doctors’ opinion

199.  On 24 January 2017, the plaintiff sought treatment from a private orthopaedic surgeon, namely, Dr David Ip (“Dr Ip”), of Wellness Pain Centre. At Dr Ip’s referral, the plaintiff underwent a MRI on the lumbar spine on 26 January 2017, which was 36 days after the Accident The MRI had the following key findings:-

(i) mild lumbar scoliosis concave to left side;

(ii) neural foraminal narrowing in the right L5/S1 touching L5 nerve root and left L4/5 and L5/S1 without compression to nerve root;

(iii) L4/5 posterior broad-based disc protrusion and posterior central disc extrusion; causing mild to moderate spinal stenosis and bilateral recess stenosis touching both L5 nerve root; and

(iv) L5/S1 grade 1 retrolisthesis, posterior broad-based protrusion and posterior central disc extrusion; causing mild to moderate spinal stenosis without compression to nerve root. [emphasis added]

200.  Upon the arrangement of the loss adjuster, the plaintiff attended the clinic of Dr Chester Lie Wai-hung (“Dr Lie”) on 24 February 2017. The initial findings made by Dr Lie was that she had tenderness over her lower lumbar spine, slightly over the right side and right buttock. The straight leg raising (“SLR”) was recorded at 50 to 60 degree. There was “no lower limb neurological deficit except LL power 5-/5 due to back pain”. She had consulted Dr Lie on 2 further occasions on 10 March 2017 and 7 April 2017 respectively. According to Dr Lie’s report dated 18 June 2018, her overall condition worsened in general with each visit. Dr Lie’s final diagnosis was that the plaintiff suffered from “back sprain injury with prolapsed lumbar inter-vertebral disc.” [emphasis added]. Significantly, he recommended surgery.

201.  Obviously not satisfied with Dr Lei’s above opinion which appears to be in favour of the plaintiff, she was referred to Dr Lam Kwong-chin, a private orthopaedic surgeon, for further assessment on 27 June 2017. This was again arranged by the loss adjuster and upon the instructions of the defendant’s insurer. Dr Lam’s much redacted report dated 12 September 2017 was very detailed and extensive. It was written like an expert report but without any leave or direction from the court or consent with the plaintiff’s legal representatives. It was written clearly for the benefit of the loss adjuster and insurer. The contents of the report can hardly be described as neutral or objective in my view. Hence, I would be very slow in accepting what Dr Lam has stated in his report as he could hardly be considered as an “independent” expert or examiner when he wrote that report.

202.  Dr Lam gave, inter alia, the following opinions in his report:-

(i) The MRI showed dark disc (loss of T2 signal) at L4/5 and L5/S1 levels. He opined that this was a typical sign of long-standing dehydration and degeneration. He was further of the view that the posterior broad-based protrusion and posterior central discs extrusion at both the L4/5 and L5/S1 levels were due to degeneration. He held the view that disc protrusion/extrusion from a single accident was highly unlikely, not to mention multiple discs. His view was that the disc changes in the plaintiff were typically due to wear and tear phenomenon that occurred over the years and not the result of a single lifting event;

(ii) Dr Lam found no loss of lumbar lordosis nor paraspinal muscle spasm. He opined that the absence of these objective signs showed that the back pain should be of a minor degree; and

(iii) Dr Lam found non-organic signs of the plaintiff’s pain, which meant that some exaggeration was present.

203.  As a result of her pain and alleged disabilities, the plaintiff was granted sick leave for a total of 329 days by the treating doctors at the public hospitals from 22 December 2016 to 15 November 2017.

204.  A Form 7 was issued on 29 November 2017 and described the plaintiff’s injury as “lower back injury resulting in low back pain and stiffness”. The loss of earning capacity permanently caused by the injury was assessed at 2%.

205.  The plaintiff went back to Nepal in April 2018 for the purpose of seeking further medical treatments. She allegedly had received intensive physiotherapy at a local hospital for 11 days. She claims there was some improvement to her back pain immediately after the physiotherapy treatment. However, after she returned to Hong Kong, she still experienced continuing back pain. The back pain also affected her post-accident employability.

G.3 Joint Medical Reports by the Orthopaedic Experts

206.  The plaintiff was jointly examined by Dr Adrian Leung (“Dr Leung”), appointed by the plaintiff, and Dr Chun Siu Yeung (“Dr Chun”), appointed by the defendant, on 26 April 2018. The 2 experts have prepared a joint medical report dated 12 June 2018 (“the JMR”) and a supplemental joint medical report dated 19 March 2020 (“the Supp JMR”).

207.  Both experts agreed that there were features of pre-existing degenerative changes over the plaintiff’s spine which was shown in the MRI. However, the experts held different opinions regarding the plaintiff’s pre-existing condition.

208.  Dr Chun opines that the pre-existing degenerative changes over the plaintiff’s spine are not caused by the Accident but were long standing.

209.  Dr Leung on the other hand opines that the plaintiff falls into Category II, which is that there is a strong possibility that some other event or natural progression of the pre-existing conditions would have brought about her present state. He apportions 50% from the pre-existing conditions.

210.  Dr Chun opines that the plaintiff falls into Category III, which is that the low back pain conditions would certainly have occurred at some stage in any event. He is of the view that no apportionment from the pre-existing condition is needed.

211.  In relation to the plaintiff’s ability to work, Dr Leung opines that the plaintiff would be unable to fulfil the job demand due to low endurance and even if she could tolerate the pain and resume to work, a lower efficiency would be expected. Whereas Dr Chun opines that the plaintiff is independent with her activities of daily living and is able to return to her pre-injury work and does not need any walking aid.

212.  In relation to sick leave, Dr Leung opines that sick leave from 22 December 2016 to 15 November 2017 is reasonable, whereas Dr Chun opines that reasonable sick leave should be of 6 weeks.

213.  The following are the main differences in their opinions as contained in those 2 reports and my findings on them.

G.3.1 Previous inconsistent accounts contained in medical records

214.  Both experts noted that the mechanism of injury described by the plaintiff at the joint examination was inconsistent with the medical records provided to them for the purpose of preparing the JMR.

215.  While Dr Chun has painstakingly listed out the plaintiff’s previous inconsistent descriptions or accounts in the JMR[7], he was right to point out that “exactly what had happened or not happened has to be determined by the Court”[8]. Dr Leung has also fairly made the comment that “given the previous inconsistent accounts given in the joint instructing letter and contained in the medical notes and reports, it would be out of my expert capacity to comment on what the mechanism of injury was”[9]. He stated that he could only be able to provide further input after he is given the court’s finding on what had happened. Thus, both experts have, rightly in my view, defer the factual findings on what actually happened during the Accident to the court.

216.  In my judgment, it is not the function of the medical experts, no matter how experienced or competent they are in their own specialized field, to make factual findings on what did or did not happen during the accident or in a particular case. Otherwise, they will usurp one of the primary functions of the court, which is to act as the adjudicator of the facts in dispute between the parties, particularly in relation to how the accident in question happened. This is what I find in a lot of cases where the joint medical experts would try to come up with “theories” of how the accident occurred and come up with their own views and interpretation of what took place in the Accident. I commend both experts in this case for not doing that.

G.3.2 The plaintiff’s pre-existing degenerative back condition

217.  While Dr Chun opines that the MRI of lumbar spine taken one month after the Accident on 26 January 2017 showed pre-existing degenerative changes “not caused by the alleged injury but long standing and had at least been symptomatic once”[10], Dr Leung on the other hand is of the view that “(F)rom (the plaintiff) history, for the injury happened in 2015, she had full recover (sic) in 5 days and return to her physically demanding work, I would not consider that accident would cause the disc prolapse as shown in the MRI”[11].

218.  On this issue, I think it is important to look at the most objective medical evidence in the form of the MRI record in this case.

219.  Dr Chun reiterates that the plaintiff’s “MRI showed no evidence of recent injury” by referring to the fact that, “(A) recently protruded disc is hyperintense (looking white) in the T2 weighted sequence. A more recently developed protruded disc is more likely to cause symptoms than an old dry up disc, as it tends to give rise to inflammation of adjacent nerve roots when the nerve roots are compressed even if it is a “static MRI”. A high percentage of dry up chronic protruded disc has no clinical relevance. There is no evidence of nerve root compression or inflammation of nerve root to support neural compromise in the static MRI”[12] [emphasis added]. In other words, Dr Chun is of the view that the protruded disc in the MRI is not recent and did not cause inflammation of adjacent nerve roots to account for the plaintiff’s variation of symptoms in the lower limbs.

220.  Dr Leung’s interpretation of the MRI findings is that the constriction of neural tissue space might cause symptoms over both legs. He explains that the MRI was taken with the plaintiff lying down and it will only show up as “static” compression. However, in daily life if the plaintiff is standing up the spine would be put on load as “dynamic” compression and “might compress on the nerves”[13].

221.  Mr Khaw SC’s submits that notwithstanding Dr Leung’s explanation on why there “might” be compression on the nerves in the plaintiff’s back, his opinion does not correlate the MRI findings with the objective SLR test results which show inconsistency and do not support any genuine nerve root compression. He therefore submits that Dr Chun’s opinion on the lack of nerve root compression or nerve root edema to explain the plaintiff’s variation of symptom presentation is to be preferred. Further, the defendant submits that Dr Chun’s opinion corroborates with the findings of the radiologist who performed the MRI and did not find any compression to the nerve roots[14].

222.  However, I agree with Dr Leung’s view that while there are signs of pre-existing degenerative changes, the fact that the plaintiff’s previous accident in 2015 had only required her to take 5 days off and she was able to work continuously for the defendant for a “physically demanding” job up till the date of the Accident, shows that whatever pre-existing degenerative changes she had, they were not serious enough to prevent her from working (and discharging her duties satisfactorily) for the defendant. Further, I agree with Dr Leung that the accident in 2015 would unlikely have caused the disc prolapse as shown in the MRI.

223.  Dr Chun diagnosis on the plaintiff is: “recurrent mechanical low back pain. The captioned injury did not cause the bulging discs with shallow protrusions at the two levels of degenerated discs. These findings should be pre-existing”.[15]

224.  Dr Leung on the other hand made the following comments on the plaintiff’s right leg symptoms and its relation with the MRI findings:-

“86. Dr Leung: Ms. Tamang did complain on right leg symptom on the date of　injury, 22 December 2016, when she was admitted in the ward. We do understand, in the busy practice of the Emergency Room, the attending doctor would only document salient finding but not in details. I trust the finding on “not writing down complain over her leg in the emergency room” should not carry weight on the argument if she had or had no leg symptom on that day. This is especially true when there was a clear document from the attending orthopaedic surgeon who had made note on the leg weakness.

……

88. Dr Leung: It was without dispute that Ms. Tamang had complain over right leg first then both sides, and in the course of about 2 weeks.

89. Dr Leung: MRI taken around 4 weeks after the injury showed L4/5 posterior broad base disc protrusion and posterior central disc extrusion, causing mild to moderate spinal stenosis & bilateral recess stenosis touching both L5 nerve root, L5/S1 grade 1 spondylolisthesis, posterior broad-based protrusion & posterior central disc extrusion, causing mild to moderate spinal stenosis, and neural foraminal narrowing in the right L5/S1 touching L5 nerve root.

90. Dr Leung: This finding means constriction of neural tissue space, and might cause symptoms over both legs. Since the MRI was taken when the subject is lying down (no pressure on back) and without movement (static study), it will only show up “static” compression. Versus, for daily life, subject had to stand up (putting the spine on load) as well inevitable bending, these might compress on the nerves, as referred to be “dynamic” compression.

91. Dr Leung: Therefore the MRI findings and the symptoms reported by Ms. Tamang were compatible”[16].

225.  Again, on this issue, I prefer Dr Leung’s opinion than that of Dr Chun’s. With greatest respect to Dr Chun, I see much of his comments on this issue (as well as some other issues he has commented on in this case) as him having adopted the role of that of an “advocate” to argue the case on behalf of the defendant. In my view, such points should be more appropriately made by counsel as part of his or her submissions at the trial. The following paragraph contained in the JMR is a good example of that:-

“87. Dr Chun: I cannot and do not believe that the AED doctors had not put down all the complaints that a patient presented to him/her. There is no evidence to suggest that the AED doctor had failed his/her duty. If the patient presented with pain or 'numbness', the DOT doctor would have recorded pain radiating/referring down the lower limb and numbness/paraesthesia. There was no such recording but instead no sensory deficit but just right lower limb weakness. Is it that the DOT doctor also failed to record her other complaints?”[17].

G.3.3 Inappropriate Non-Organic Features

226.  In the JMR, Dr Chun states, “On physical examination, she showed inappropriate non-organic features [§§50(iv)[18], (v)[19], (vi)[20], (vii)[21]; 51(i) to (iii)[22]; 52(vi)[23]; 53(i)[24] vs (v)[25], (ii)[26], (iii)[27]] in the absence of objective serious neurological deficit of the lower limbs or local pathology of the lower limbs”[28] [emphasis added]. Based on this, Dr Chun opines that the plaintiff “had exaggerated & expanded her symptoms and disability at this examination”. He is of the view that the plaintiff’s condition “had long reached maximal medical improvement”. He opines that “no further treatment is required or will be effective in dealing with the symptom and signs exaggeration & expansion[29]” .

227.  To counter the above opinion of Dr Chun, Dr Leung stated the following views of his in §§96 and 97 the JMR:-

“96. Dr. Leung: There were signs to suggest psychological components. Having said that, it does not equate to the conclusion that the subject fabricate the symptom. Patients having stress from various social issues, including the ongoing legal proceeding, loss of job, etc, would expectedly increase suffering on the organic pain. That might led to presence of some inorganic findings. This is human nature.

97. Dr. Leung: I would also need to put emphasis that, during the examination, there was no finding to rebut the presence of back pain and leg symptom”.

228.  I prefer Dr Leung’s much more balanced and measured views above as plausible explanations for the “inappropriate non-organic features” which were listed out in details by Dr Chun in the JMR. I agree with Dr Leung’s emphasis in this case that, during the joint examination, there was no finding to rebut the presence of back pain and leg symptoms. Dr Chun did not take issue with this. Hence, in my view, either those back pain and leg symptoms were caused by the Accident, partially by the Accident or they were all due to a pre-exiting condition which had nothing to do with the Accident at all. In this regard, I defer Dr Leung’s opinion.

229.  However, I do agree with Dr Chun that the plaintiff might have “exaggerated and expanded” her symptoms at the examination based on the objective physical findings.

G.3.4 Positive results on the Waddell’s Simulation Tests

230.  Mr Khaw SC in his closing submissions has placed a lot of emphasises on the experts’ findings during the physical examination of the plaintiff that the plaintiff had scored 3 positive results on the Waddell’s Simulation Tests. He submits, “(I)t is important to emphasise that both experts agreed that the plaintiff scored 3 positive results on the Waddell’s Simulation Tests which is regarded as clinically significant for non-organic back pain [F/871-872]” [emphasis from original text]: (See §112 of the defendant’s closing submissions).

231.  However, with respect to Mr Shaw SC, in my view, §51 on [F/871-872] has only set out the result/finding of the tests during the physical examination, while it did not say both experts agreed that as a “clinically significant for non-organic back pain” as claimed. The following findings were recorded:-

“51. Waddell's Simulation Tests:

(i) Shoulder elevation: +ve.

(ii) Vertex pressure: +ve.

(iii) Pelvic rotation: +ve.

(iv) Pinch test: -ve.”.

232.  Mr Khaw SC then cited a number of authorities to support the defendant’s submissions of the importance of the “agreed expert opinion” including Huntley v Simmons [2010] Med LR 83 (CA) and; Lam Kam Fai v Yau Shing Scaffolding Co Ltd [2015] 3 HKLRD 119 (CA); and the significance of having 3 positive Waddell’s signs including Wong Yun Chiu v Union Printing Co Ltd [2011] HKCFI 51; and Bokhim Dil Kumar v Dragages Hong Kong Ltd [2020] HKCFI 3136. The defendant invited the court to accept the “agreed expert opinion” of 3 positive Waddell’s signs as being tantamount to conclusive evidence of symptom magnification.

233.  Again, with great respect to Mr Khaw SC, this was not the “agreed expert opinion” of Dr Chun and Dr Leung which can be found in the JMR as claimed at all. Having listed out all of their findings after the physical examination of the plaintiff (which they both agreed), including the result of the Waddell’s simulation tests, the 2 experts then set out their own respective views under the heading of “COMMENTS”. I do not think either Dr Chun or Dr Leung has specifically commented on the purported significance of the 3 positive results of the Waddell’s tests in the context of the case. The closest that Dr Chun has come to mention of this was in §94 of the JMR when he stated “(O)n physical examination she showed inappropriate features” and gave out the reference of them in bracket, inter alia, referring to §51 (i) to (iii) which I have listed out above. However, in my view, this is very different from saying that Dr Leung, the plaintiff’s expert, has agreed to this as he clearly looked at the matter differently and considers those “inappropriate non-organic features” might have been caused by “psychological components” which “does not equal to the conclusion that the subject fabricate the symptom.”[30]

234.  I think the same comments can be made of the submissions made by the defendant in relation to the SLR test.

235.  While it is true that Dr Chun’s opinion regarding the plaintiff’s inappropriate features is supported by the observations of some of the treating doctors at POH, I think those observations must be seen in the light of the language barrier and the communication problems. In my view, at most, they may suggest that the plaintiff had exaggerated her symptoms. However, it does not mean that she had completely fabricated her injuries and some of the symptoms in relation to her back and legs found at the joint examination.

236.  As I have found under the liability section above, one of the special features of this case is the plaintiff’s lack of proficiency in the English language and her limitation in effectively communicating in English or Cantonese. This no doubt in my view has led to a lot of miscommunications between her and the treating doctors, which might cause even important information not being properly related to and recorded down by the doctors in the public hospitals and/or clinics.

237.  The following comments made by Mr Sadhwani in his closing submissions in relation to the plaintiff’s colleague, Rai, who had accompanied the plaintiff in the ambulance on the way to POH and at the A&E can amply demonstrate this.

238.  It is evident from Rai’s evidence that her English standard was not to a proficient level, having worked as a washwoman in a hairdressers’ saloon and in the Kitchen (as a line chef) where not much English communication was required. However, due to the severe pain experienced by the plaintiff immediately after the Accident (she was crying in pain), Rai was required to act as an “interpreter” on behalf of the plaintiff both on the ambulance and at the A&E in POH.

239.  In relation to the ambulance journey, Rai was asked questions about the communication with the ambulance staff which she said, “I cannot tell you whether I had a problem or not, I can tell you he can understand to an extent and I understand him”.

240.  Further, Rai also described in court there were communication problems with the doctor in the A&E.

241.  The point which was brought out in cross-examination was that the word “slip” was mentioned to both the ambulance staff and to the A&E doctor by the plaintiff and Rai, but this was never mentioned in any of the respective of medical records. I accept the plaintif’s submission on this for the following reasons. Firstly, all the communicators mother tongue were highly likely not English. Secondly, the focus of the questioning is not to get to the root of the circumstances and cause of the Accident but rather as to the immediate treatment and care of the plaintiff. Thirdly, it is evident the plaintiff was in extreme pain on both occasions and this may have distracted the person recording the information inaccurately.

242.  Having had the chance of listening to the evidence given by Rai and the plaintiff on the matter and the benefit of observing their demeanour when giving their evidence, I fully accept Mr Sadhwani’s above submissions.

243.  While I accept that there are discrepancies in the accounts given by the plaintiff to the doctors, particularly during the initial period after the Accident, like what Dr Leung opines, it was “without dispute” that the plaintiff “had complain (sic) over right leg first then both sides, and in the course of about 2 weeks”.[31] Again, either these injuries were caused by the Accident or they were not, with or without the pre-existing condition. Given the mechanism of her injuries and the proximity of time between the Accident and the onset of those complaints, I would, on a balance of probabilities, consider that they were caused by the Accident.

244.  Further, I think one should bear in mind that the plaintiff had attended 32 sessions of physiotherapy at POH and 17 sessions of occupational therapy at TMH. She attended those treatments on a regular basis until the end of May 2017. I do not think someone feigning the pain right from the beginning would have bothered to attend so many different treatments in a public hospital which require long waiting time but short period of treatments. I therefore am of the view that while there might be some exaggeration at the time of the joint examination, I do not think that the plaintiff’s symptoms, particularly those experienced by her in the days, weeks and months immediately after the Accident, have been feigned.

G.3.5 The plaintiff’s ability to return to work

245.  Dr Chun opines that the plaintiff is independent with her activities of daily living. She is able to return to her pre-injury work and does not need any walking aid[32].

246.  Dr Leung opines that, “Her presentation was tally with the occupational therapist report which commented Ms Tamang would be unable to fulfil the job demand due to low endurance. Even she could tolerate the pain and resume to work, a lower efficiency would be expected”[33].

G.3.6 Total impairment of the whole person and future medical expenses

247.  On the issue of impairment, Dr Chun puts the whole-person impairment at 5% and makes it clear that it should not be related to the alleged injury. He further opines that there was no loss of earning capacity. Dr Leung puts the whole-person impairment at 9%.

248.  On future medical treatment, Dr Chun has made it plain that “no further treatment is required or will be effective in dealing with symptom and signs [of] exaggeration and expansion”.

249.  However, Dr Leung held the opposite view and recommended discectomy and fusion surgery as further medical treatment and estimated a budget of HK$600,000 if the surgery is to be done in the private sector.

250.  In respect of the plaintiff’s sick leave which is claiming for a total period of 329 days, Dr Chun is of the view that only 6 weeks (ie 42 days) of sick leave is considered reasonable. Dr Leung was of the view that the whole 329 days (around 11 months) given by the doctors at the public hospital was appropriate.

G.3.7 The Supp JMR: Category II or Category III?

251.  The 2 medical experts also written the Supp JMR which was dated 19^th March 2020.

252.  Dr Chun opines the plaintiff’s injuries falls into category III of Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958. On the other hand, Dr Leung opines that the finding of the MRI done in around one month after the plaintiff’s injury on 22^nd December 2015 would reflect both the “pre-existing conditions” and “consequence of the current injury”. Dr Leung also opines that what is shown in the MRI film was of mild degeneration over the plaintiff’s lowest 2 intervertebral disc and was compatible with her age and job nature. With regard to the 3 possible scenarios of pre-existing conditions, Dr Leung would consider the plaintiff’s case in that there is a strong possibility where some other event or natural progress of the pre-existing condition (degeneration on top of history of back injury) would have brought about her present state, but for the accident. Dr Leung concludes that he would put 50% apportionment for the pre-existing conditions of the plaintiff.

253.  Mr Sadhwani submits that Dr Leung’s opinions, prognosis and comments in relation to the plaintiff’s impairment, disability, her ability to return to work and sick leave should be preferred for the following reasons:-

(a) Dr Leung has very fairly commented on causation as its not in his expert capacity to do so and has said so in a single paragraph.[34] Dr Chun, on the other hand has described in detail the “different” modes of injury and then states it is up to the court to the decide.[35] Dr Chun paints a biased picture of the Court about the “differing” modes to the court without committing himself to causation;

(b) Dr Chun has placed a lot of emphasis on the plaintiff’s back injury pre accident that took place in in 2015. The plaintiff at the time was 26 years old and was only given 5 days of sick leave and returned to work without any problem. She worked with no ailments until the material day;

(c) Further, to the latter, Dr Chun implies the disc prolapse was caused in 2015 and not the Accident. The accident in 2015 would not have caused a disc prolapse as the repercussions would be far more than a 5-day sick leave period;

(d) Dr Chun has unfairly stated that she was noted to have right lower limb weakness without sensory deficit[36], implying this was not the case when she was first admitted the A&E and there was no recording of pain or numbness. The plaintiff fairly submits that the A&E Department medical staff would not record each and everything and concentrate more on the major ailments. Further, it is natural for other signs and symptoms to develop a few days after the Accident especially for back pain cases and in 2 weeks after the Accident, the medical records reveal just that.

(e) Dr Leung has given a direct and straightforward interpretation of the MRI which is consistent with the MRI finding of the radiologist. He has explained very logically[37] that there is a touching on the L5 nerve root and since the MRI was taken with the plaintiff lying down, “static compression” would only show up when compared with “dynamic compression” which is evident with activities of daily life. Hence the nerve root would be compressed when the daily activities of life are resumed. Dr Chun does not rebut this.

(f) Dr Leung accepts there is a degree of degeneration and has fairly accounted for it in the supplemental report at a very high 50%.[38]

254.  I agree with Mr Sadhwani’s above submissions and prefer Dr Leung’s opinion than that of Dr Chan’s.

G. 4.1 Pain, Suffering and Loss of Amenities (“PSLA”)

255.  The plaintiff has put forward the following cases for PSLA:-

(i) Tamang Rabichandra v VSL SWC (a firm) & Anor (unreported, HCPI 659/2007);

(ii) Chan Yuet Keung v Harmony (International) Knitting Factory Ltd [2010] 5 HKLRD 599;

(iii) Altaf Ahmed v Innovative Network Engineering Company Limited & Anor (unreported, HCPI 237/2008);

(iv) Wong Yun Chiu v Union Printing Company Limited (unreported, HCPI 282/2009);

(v) Cheung Oi Yan Ruby v Wong Hoi Sum [2012] 4 HKLRD 334; and

(vi) Razaq-Akhtar v Wang Hoi Transportation Ltd (unreported, HCPI 303/2007).

256.  Taking into account the above authorities and the factor of price inflation, Mr Sadhwani submits that the PSLA award should be in the region of HK$400,000, without factoring any deduction for the pre-existing degeneration opined by Dr Leung.

257.  The defendant on the other hand has referred to the following cases in its opening submissions as comparables for the PSLA award:-

(i) Wong Chun Kin v Caritas – Hong Kong (unreported, DCPI 1454/2017, 18 April 2019);

(ii) Singh Satnam v Wong Chun Fung (unreported, HCPI 789/2009, 27 April 2011);

(iii) Chu Sio Iong v Cheung Ho Yin & Anor, (unreported, DCPI 580/2011, 7 May 2013);

(iv) Ng Ning Fu v Leader Engineering & Construction Ltd and Anor, (unreported, HCPI 173/2015, 12 October 2017);

(v) Pak Siu Hin Simon v J.V. Fitness Ltd (unreported, HCPI 574/2014, 15 May 2017); and

(vi) Chan Lok Hang v Swire Resources Ltd [2018] HKCFI 1463.

258.  Mr Khaw SC submits that an appropriate PSLA award should be at no more than HK$100,000 after applying a 50% discount of her pre-existing condition.

259.  In my view, the plaintiff’s injuries sustained in the Accident are more in line with the cases cited by the plaintiff than those relied on by the defendant. I consider an appropriate PSLA award should be in the region of HK$300,000 before the deduction for the pre-existing condition as opined by Dr Leung and after taken into account of the possible exaggeration of her symptoms at the joint examination as opined by Dr Chun.

260.  Having taken into account for the 50% discount, I am of the opinion that an appropriate PSLA award resulting from the Accident should be at the sum of HK$150,000 in this case.

G. 4.2 Pre-trial Loss of Earnings

261.  It is not in dispute that the plaintiff’s average monthly earning for the 12 months preceding the Accident was HK$19,330. Even though the plaintiff suffered the injury on 22 December 2016, on 16 January 2017, when she was still on sick leave, the plaintiff received a letter from the defendant informing her of an increase of her basic salary to HK$20,370 per month with effect from 1 January 2017. Furthermore, in recognition of her performance and contribution in 2016, the plaintiff was awarded a year-end bonus of HK$36,000. Thus, the plaintiff submits that the pleaded figure of HK$23,675.55 in the amended revised statement of damages (“ARSOD”) should be adopted, factoring in price inflation. I accept this is a fair figure to reflect her monthly earnings at the time of the Accident.

262.  I consider the sick leave period given by the treating doctors at the public hospital of 327 days (around 11 months) is reasonable. This is supported by Dr Leung’s opinion of which I accept.

263.  As pleaded in the ARSOD, in view of the seriousness of the injuries and disabilities of the plaintiff, the plaintiff should be given a period of about 2 months for taking convalescence and looking for a job after the period of sick leave has been expired. I agree with this approach.

264.  As the plaintiff is experiencing persistent pain and disabilities, the plaintiff is unable to return to her pre-accident job, which was mentioned in her witness statement but not seriously challenged by the defendant. In order to mitigate her loss, the plaintiff attempted to return to work at various food establishments in the food and beverage industry as a kitchen worker and waitress but found herself unable to meet any of the job demands. Again, this was not seriously challenged by the defendant’s counsel during the trial. Details of the pre-trial employment have been listed out in §22 of the ARSOD which again has not been seriously challenged by the defendant. She is currently working as a chef since 8 February 2021.

265.  As pleaded in §22 of the ARSOD, the plaintiff has earned an average monthly salary of HK$12,978.50. This figure has not been seriously challenged by the defendant during the trial. To be fair to the defendant’s counsel, their failure to challenge the plaintiff’s case on quantum was mainly due to the running out of time during the trial as they had badly exceeded their own original estimated length of trial and the time it took them to cross-examine the plaintiff on the issue of liability.

266.  In the aforesaid premises, I think it is reasonable to assess that the plaintiff will suffer a further loss of monthly income in the sum of HK$10,697.05 (HK$23,675.55 – HK$12,978.50) up to the notional judgment date.

267.  In the aforesaid circumstances, I would allow the plaintiff’s claim pre-trial loss of earnings, including 5% MPF as follows:-

Form 22 December 2016 to 21 January 2018 (329 days of sick leave plus 67 days for taking convalescence and looking for a job)

(a) HK$23,675.55 x 13 months = HK$307,782.15

(b) 5% MPF on HK$307,782.15 = HK$15,389.11

From 22 January 2018 to 22 September 2023 (judgment date) (68 months)

(c) HK$10,697.05 x 68 months = HK$727,399.40

(d) 5% MPF on HK$727,399.40 = HK$36,369.97

Total: (a) + (b) + (c) + (d) = HK$1,086,940.63

268.  I shall apply 50% discount to the above sum based on Dr Leung’s opinion for the pre-existing condition and would therefore allow a sum of HK$543,470.32 as pre-trial loss of earnings in this case.

G.4.3 Future Loss of Earnings

269.  Based on my above findings and Dr Leung’s opinion, the plaintiff will suffer a future loss of earnings because she is not able to return to her previous work. Assuming the plaintiff’s monthly earnings of HK$25,021 (taking into account of inflation) and taking the plaintiff’s current monthly notional earnings at HK$15,000 (which is consistent of what she has been earning in different jobs during the pre-trial period and after the expiry of sick leave), her projected future loss of earnings per month in my view would be at:-

HK$25,021– HK$15,000 = HK$10,021

270.  The plaintiff was aged 27 years at the time of the Accident and is now 34 years old. Adopting Table 10 of the Chan Tables 2019, the applicable multiplier is 21.46. In my judgment, the future loss of earnings would therefore be as follows:-

HK$10,021 x 12 x 21.46 = HK$2,580,607.92

271.  After taking into 50% discount for the pre-existing condition, the future loss of earnings resulting from the Accident that I would award in this case will be at HK$1,290,303.96.

G.4.4 Loss of Earning Capacity

272.  Dr Leung puts the plaintiff’s whole-person impairment at 9%. In addition, the plaintiff since the beginning of the post-accident period has been unable to cope with job demands intermittently from 22 January 2018 to 8 February 2021 during various jobs she has undertaken. Mr Sadhwani submits that given a high figure of whole person impairment and given the plaintiff’s potential risk of losing her job in the future, I should follow the approach in Lai For Yau v Gammon Construction Ltd, unreported DCPI 2576/2019 and make an award under this head of damage is justified.

273.  In Thapa Surendra v E W Cox HK Ltd, HCPI 451/2009 a sum of HK$264,000 was awarded for a back pain case. The plaintiff submits the present amount claimed in the ARSOD of HK$150,000 is not excessive bearing in mind the plaintiff’s relatively young age.

274.  The defendant on the other hand submits that given the fact that the plaintiff was able to return to work in similar jobs as her previous employment at the time of the Accident and that both experts did not recommend the plaintiff to change to a different type of jobs, indicate that she does not suffer any handicap in the open labour market.

275.  I agree with the defendant’s submission that no award should be made under this head.

G. 4.5 Other Special Damages

276.  The other special damages claimed amount to HK$15,980 as provided in the ARSOD, Appendix A in the form of medical expenses, medical equipment and medication, travelling expenses and tonic food. The claimed amount is not unreasonable and has not been challenged. I will allow full amount under this head, with 50% discount of that amount to be awarded.

G.4.6 Future Medical Expenses

277.  Dr Leung suggested in the JMR that the plaintiff may have future medical expenses for surgery of discectomy (to decompress the spinal stenosis and leg symptom) and fusion (to handle the spondylolisthesis and back pain) and estimated a budget of HK$600,000.

278.  I am not convinced that her back condition and the possible need for future surgery could be all attributed to the Accident. I am also not convinced that the plaintiff will undergo such surgery in future even if offered. Therefore, I am not prepared to award any cost for future surgery in this case.

G.4.7 Employees’ Compensation

279.  Credit should be given to the employees’ compensation that the plaintiff has received in the amount of HK$250,000.

H. CONCLUSION

H.1 Summary of calculations

280.  Taking into account of a 50% reduction in relation to the pre-existing condition as stated by Dr Leung, the amount of quantum which I would award to the plaintiff in the case is as follows:-

PSLA	HK$150,000.00
Pre-trial loss of earnings	HK$543,470.32
Future loss of earnings	HK$1,290,303.96
Loss of earning capacity	nil
Special damages	HK$7,990.00
Future medical expenses	nil
Subtotal:	HK$1,991,764.28
Less: EC payment	HK$250,000
Total:	HK$1,741,764.28

H.2 Judgment entered

281.  In the aforesaid premises, I therefore will enter judgment in the sum of HK$1,741,764.28 plus interest and costs in favour of the plaintiff in this case.

H.3 Interest

282.  The following interest will be awarded in this case:-

(i) at 2% on general damages from date of writ to date of judgment and thereafter at judgment rate; and

(ii) at half of the judgment rate on special damages from the date of the Accident to date of judgment and thereafter at judgment rate.

H.4. Costs

283.  Costs will follow the event. I will make an order nisi that the defendant do pay the costs of the plaintiff in this action, to be taxed if not agreed, with certificate for counsel. The plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations. In the absence of any application by the parties to vary the same within 14 days, the order nisi will become absolute.

284.  It remains for me to thank counsel on both sides for their very helpful submissions in this case.