Lam Wing Yee v. City Super Ltd

CACV 550/2019

[2022] HKCA 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 550 OF 2019

(ON APPEAL FROM HCPI NO 523 OF 2016)

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D E C I S I O N

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G Lam JA (giving the Decision of the Court):

1.This is the court’s decision on the defendant’s application by summons dated 7 April 2021 for security for costs of the plaintiff’s appeal.  The disposal of this application had been deferred by reason of the plaintiff’s legal aid appeal and the plaintiff’s application for leave to file a further affirmation in opposition, as can be seen from G Lam JA’s decisions dated 12 August and 23 December 2021.[1]  Pursuant to Order 59 rule 14A of the Rules of the High Court (Cap 4A), we consider it appropriate to determine the application on the basis of the written materials.

2.The defendant seeks security for costs of the appeal on the ground that the plaintiff is impecunious and the appeal has little merit.  The plaintiff does not dispute her impecuniosity, but opposes the application on the ground that an order for security would stifle her otherwise meritorious appeal.  Impecuniosity on the part of the appellant is a factor that generally inclines the court towards ordering security.  Strength in the appeal may on the other hand be a ground for opposing any requirement for security, but there is a high threshold for the appellant to pass.  As stated in Chung Kau v Hong Kong Housing Authority & others [2004] 2 HKLRD 650 at §14(3):

“ On a consideration of the merits of the appeal, while a detailed examination is not required (or desirable, even if possible on the materials before the court at this stage), the court should form some sort of preliminary, even instinctive, view. Where the merits appear to go strongly one way or the other, this may by itself be a decisive factor. Thus, an appeal which is very strong would often be a very good reason not to order security. The converse of course also applies. …”

3.It is necessary, therefore, to examine the merits in brief to see whether the plaintiff has such a strong prospect in the appeal that security should not be ordered. 

4.In the action below the plaintiff sued her employer, the defendant, for damages for back injury sustained in an accident at work on 21 June 2013.  In brief, the plaintiff alleged that she suffered injury to her back whilst lifting and transporting (together with another worker) a box of goods from a pallet stacked with boxes to a nearby flat trolley in the unloading area near the defendant’s supermarket in Causeway Bay. She alleged that the defendant was negligent or in breach of statutory duty or the contract of employment in various ways including failing to inform or advise her in relation to the risk of injury of moving heavy boxes, failing to give her adequate training and supervision on the safety procedures for performing her work, failing to provide a safe system for the transport of heavy boxes, and failing to take care and precautions to ensure that the plaintiff was reasonably safe while carrying out her duties.  The defendant denied liability.

5.In his judgment given after trial (“Judgment”),[2] Deputy High Court Judge Raymond Leung SC (“Judge”), dismissing the plaintiff’s action:

(1)  accepted that the plaintiff did suffer injury causing back pain in the course of handling a “GW” box weighing about 20 to 30 kg – a type of box which usually contained rice, vinegar, oil, sugar, cereal, flour, pasta, canned food, etc;^[3]

(2)  found that the plaintiff’s claim that she had not suffered any relevant injury prior to the accident was incredible, and considered that the plaintiff had sought to underplay the significance of her previous orthopaedic injuries;^[4]

(3)  found that the plaintiff had deliberately understated the training she had in fact received from the defendant;^[5]

(4)  found that the plaintiff had been handling boxes of the same type from the inception of her employment with the defendant (which was September 2012, nine months before the accident), and that she would generally know the weight of GW boxes;^[6]

(5)  found that the plaintiff was generally aware of the risk attendant upon excessive back bending during weight bearing;^[7]

(6)  held that the weight-bearing required for the plaintiff and her colleague together to handle the box in question (even assuming the box weighed 30 kg) did not appear to be excessive relative to the plaintiff’s bodyweight;^[8]

(7)  held that it was up to the plaintiff to adopt whatever posture that best suited her, that there could be no hard and fast rule imposed by the defendant, and that for the plaintiff to lift the box by using both handgrips in a slightly forward bending posture while standing (with or without squatting) in synchronisation with her colleague was not an unsafe or improper posture;^[9]

(8)  concluded that the plaintiff had failed to prove that the defendant had not installed and maintained a safe system of work or was in breach of its duty of care or statutory duty under the Occupational Safety and Health Ordinance (Cap 509);^[10]

(9)  held that if the defendant was liable, the plaintiff would have been found 30% contributorily negligent on account of her failure to seek help or break down the load;^[11] and

(10)  on a contingent basis, assessed the damages in the gross sum of $1,354,396, reduced by 30% for contributory negligence to $948,077.2, subject to the plaintiff giving credit for the employee’s compensation received by her.^[12]

6.The plaintiff has filed a Notice of Appeal, seeking to have the Judgment set aside and to have judgment entered in her favour instead for damages in the sum assessed by the Judge.  Some of the grounds of appeal stated therein seek to impugn the Judge’s findings in relation to credibility; see Grounds 3, 5 and 6.  Overall it is not suggested that the Judge made any error of law.  The appeal essentially alleges that the Judge was wrong in concluding that the plaintiff failed to prove that the defendant had not maintained a safe system of work or was in breach of its duty of care or statutory duty.  Such a challenge to the factual conclusions of the trial judge, on established principles, faces a high hurdle.

7.For the purpose of this application, the plaintiff has lodged the written submissions of Mr Anson Y Y Wong (who is together with his instructing solicitors acting on a pro bono basis). Mr Wong, recognising the difficulties in challenging the Judge’s conclusions on credibility, submits that the Judge has committed palpable errors concerned with the question whether the plaintiff had been given training or instruction on the proper posture to be adopted.  On that basis it is submitted that the appeal is sufficiently meritorious to militate against an order for security being made.

8.Mr Wong submits that the reasons given by the Judge in §64 of the Judgment for saying that the plaintiff’s claim that she had not been given any instruction or training and hence had no knowledge as to the proper posture for manual handling is not believable, cannot support a finding that the plaintiff was given proper instruction or training as to the proper posture for handling heavy boxes.

9.Mr Wong also submits that the Judge’s finding in §71 of the Judgment that the plaintiff was generally aware of the risk attendant upon excessive back bending during weight bearing is not a basis for rejecting the plaintiff’s claim that she had not been given any training or instruction as to proper posture.

10.Further, referring to the Judge’s observation in §72 of the Judgment that “as a serious practitioner of Karate and Taekwondo, the Plaintiff would have certain innate knowledge as to the functioning of different body parts”, Mr Wong submits that such knowledge does not translate into knowledge of the proper posture for handling heavy boxes, and does not absolve the defendant from its duty to provide proper training to its employees.  He also submits that the fact that the plaintiff had been in the job for nine months does not necessarily mean that she was aware of and had been adopting the proper posture.

11.The problem with the above submissions centring around proper posture is that (i) the primary case of the plaintiff at trial was, as pleaded in her Reply, that “she did not adopt any unsafe or improper posture while lifting the [Box]”; (ii) there was no evidence as to the exact posture of the plaintiff when the accident happened; and (iii) the Judge did not find what her exact posture was or that her injury was caused by an improper posture.[13] Notably, the Judge did not base his finding of contributory negligence on improper posture.[14]  On the plaintiff’s own case, which the Judge did not reject, her injury was not caused by improper posture.  It follows that Mr Wong’s contentions that the Judge erred in relation to whether the plaintiff was given training or instruction on proper posture do not demonstrate a strong likelihood of success in the appeal.

12.Mr Wong further submits that in saying that the lifting of the box by the plaintiff by using both handgrips in a slightly forward bending posture while standing (with or without squatting) in synchronisation with her colleague was not an unsafe or improper posture,[15] the Judge was speculating.  We do not think that the Judge was purely speculating.  The plaintiff’s own case was that she was holding the handgrips at one end of the box whilst a colleague was holding the other end.[16]  The Judge reasoned from the dimensions of the objects that the plaintiff would have to slightly bend forward or squat to reach the handgrips to lift up the box.[17]  But even if the Judge was not correct in inferring this particular posture, it still does not provide the plaintiff with a strong ground of appeal, for the reasons given above.

13.In §75 of the Judgment, the Judge said:

“ In fact, as a matter of common sense, where appropriate, the Plaintiff and Madam Hung could also have (a) used a flat trolley without any empty box sitting on it; (b) slid the Box across from the pallet to the flat trolley without much lifting; (c) rolled the flat trolley with the Box on it to the relevant shelf; (d) loaded some items from the Box onto the shelf or shelves whereby the weight of the Box would be reduced; (e) thereafter stacked the Box, if deemed necessary, onto an empty plastic box to be put on the flat trolley to facilitate further loading of the shelves. These are matters that may reasonably be left to the discretion of the employees.”

14.Mr Wong submits that this alternative method is not a matter of common sense but a matter that should have been taught in proper training or instruction provided by the employer, and that the lack of evidence of such instruction on this alternative method highlights the defendant’s failure to maintain a safe system of work.  However, it appears that this method is simply something referred to by the Judge incidentally at the end of the section of the Judgment on liability.  It was not advanced by the plaintiff as the safe system which the defendant ought to have provided. Further, it is well established that an employer’s duty does not necessarily require him to decide on every detail of the system of work, and that where the operation is simple, the precise manner in which it may be done may be left to the employee.  The Judge’s assessment in the present case is that whether to adopt such alternative method was a matter that might reasonably be left to the discretion of the employees.[18] It is unnecessary for us to express a final view on this matter but it does not seem to us, for present purposes, that there is a very strong ground to say that the Judge was in error in this respect.

15.For the above reasons, despite the efforts of Mr Wong and despite our natural sympathy for the plaintiff for the injury she had suffered, as a matter of principle we conclude that security for costs should be ordered.

16.The defendant seeks security in the sum of $727,600. Even after excluding the estimated costs relating to the application for security, the amount still seems to us to be grossly excessive.  This is a simple appeal on liability alone.  Only one witness, i.e. the plaintiff, gave evidence at trial.  The documents are limited.  In our view a sum of $160,000 is adequate security for the defendant’s costs of the appeal.

17.We therefore make the following orders:

(1)  The plaintiff do pay $160,000 into court as security for the defendant’s costs of the appeal within 56 days.

(2)  The appeal is stayed pending payment into court.

(3)  In default of payment, the appeal will be dismissed without further order with costs to the defendant.

18.We also make a costs order that the plaintiff do pay the defendant the costs of this application, summarily assessed in the sum of $64,000.

Written Submissions by Mr Anson Wong Yu Yat, instructed by Kenneth Lam, Solicitors, for the Plaintiff

Written Submissions by Mr Leon Ho, instructed by Winnie Mak, Chan & Yeung, for the Defendant