Cheung Suk Wai v. Attorney General

HCPI000536/1996

1996, No. P.I.536

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PERSONAL INJURIES

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Coram : Hon Leong, J. in Court

Dates of hearing : 28, 30 and 31 October 1996

Date of delivery of judgment : 1 November 1996

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J U D G M E N T

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1. The plaintiff was employed by the Hong Kong Government as a workman since 1988. In April 1989 she worked in the Regional Services Department and her duties were to sweep and clean two parks and playgrounds, the dust bins and the toilet there. These parks were the Che Kung Miu Road Park and Hung Mui Kuk Road Park. In performing her duties she needed to collect the refuse and put them into garbage bags and then transfer them to a refuse centre at Tin Sum Estate. The distance between the parks and the refuse centre was not more than 20 minutes walk for one and 5 minutes walk for the other. The garbage bags were 2 x 2 x 2½ ft. The areas of these parks and playgrounds according to the plaintiff were large and she was the only workman responsible for their cleaning. When it has rained, the wet refuse collected would be heavier.

2. The plaintiff normally put the garbage bags containing the refuse into the containers at the refuse centre by swinging them over the side of the container. These containers were over four feet tall .

3. Together with two other workmen who were mainly responsible for horticultural work, the plaintiff worked under an artisan Mr Wong and a supervisor Mr So.

4. It is not in dispute that her superiors did not set down any time limit for her to finish her assignments each day and there was no rule or instruction as to how full she should fill the garbage bags before she took them to the refuse centre for disposal. She was left to regulate her own pace and to decide the manner of work. Nevertheless, her superiors as all superiors did, expected the plaintiff to have a good output and do her work quickly. The plaintiff was provided with the tools for her work which included brooms, unlimited supply of garbage bags and a handcart for transporting refuse. These were stored in a shed in the parks.

5. The plaintiff's case is that she sprained her back on 21st April 1989 when she was sweeping a path in one of the parks. Her evidence is that on that day she used a broom longer and different from the one she normally used. She changed the broom because her supervisor was complaining that she worked too slowly and she wanted to finish her work quicker with the larger broom. Afterwards, she went to see a bone setter and on 22nd April 1989 she went to have an X-ray examination. On 23rd April 1989 she went to see Dr Chan Ka Fat and thereafter to see another Dr Chan at the Lung Hang Estate clinic. She obtained medical certificates showing that she suffered from low back pain and she was given 4 days sick leave from 24th April 1989. She did not inform her supervisor immediately nor did she do so on 28th April 1989 when she resumed work. She did not do so because she was unable to locate Mr So who only visited the parks once or twice every week. It was only two weeks later in early May 89 that she saw Mr So and told him about it. She said Mr So refused to make a report for her to claim employees' compensation because it was too troublesome and in any case it was too late since such report had to be filed within 48 hours of the accident.

6. Mr So's evidence is that the plaintiff did not inform him of the accident on 21st April 1989 and he only knew that the plaintiff was given 4 days sick leave and she resumed duty on 28th April 1989. There was no recommendation from a doctor that she was not fit for duty. Mr So said the plaintiff did not make any claim for employees' compensation.

7. The certificates from both doctors do not indicate that the plaintiff was not fit to resume duty. They only certified that the plaintiff had suffered from low back pain and had been given sick leave and there were no further details .

8. Nothing on these certificates would arouse the attention of Mr So or anyone reading them, that the plaintiff still had trouble with her back so as to put Mr So on enquiry as to her suitability to resume normal duty.

9. It is not in dispute that on 23rd May 1989 the plaintiff suffered a sprain of her back when she was on duty. On this occasion Mr So was informed of the accident and he prepared an accident report and submitted it to the District Office with the necessary documents to claim employees' compensation. This report was submitted on 30th May 1989 even though it was later than 48 hours after the accident. Mr So explained that this was because of the late submission by the plaintiff of all the necessary documents.

10. It would appear that Mr So did not consider the making of a report claiming employees' compensation troublesome and he would not have refused to make a report even though it was later than 48 hours after the accident. I do not accept the plaintiff's evidence that she had informed Mr So of the accident on 21st April 1989 and I also reject her evidence that she wanted to claim employees' compensation but Mr So refused to make a report for her. I accept Mr So's evidence.

11. It is not denied that the plaintiff made a complaint to Mr So on 18th April 1989. She complained about workload only. She did not mention she had special physical defect. Certainly it was not about her back trouble which had not yet occurred. Between 28th April 1989 and 23rd May 1989, the plaintiff made no complaint about her back problem to Mr So. Mr So was entitled to take it that the plaintiff was no longer troubled by any problem in her back. The fact that the plaintiff had suffered such pain does not mean, in the absence of medical evidence, that her trouble persisted after 28th April 1989. Mr Wong, the artisan, testified that the plaintiff never informed him about the accident in April 1989 nor did she request light duties. Further she did not indicate in anyway she was not fit to perform her normal duties.

12. I find that Mr So did not know and could not have known that the plaintiff continued suffering from low back pain, if any, after her sick leave expired on 28th April 1989 and so did Mr Wong.

13. The plaintiff's evidence is that after a typhoon in May 1989, she returned to work at the parks on 23rd May 1989. She found there was more work than usual because of fallen leaves and debris caused by the typhoon. She had to clean up the wet leaves and debris and to help putting up fallen trees. She said the work was strenuous because the workload had increased. She had no assistance from others and had to finish the work as quickly as possible. She had to take more trips, 4 to 5 trips instead of the normal two trips daily, to the refuse centre to dump the wet leaves and debris. In the course of lifting the bags of refuse to put into the refuse containers, she sprained her back again because the bags were exceptionally heavy.

14. Neither Mr So nor Mr Wong had seen how she dumped the bags on that day or previously. Mr Wong said that the nature of work on that day was the same as normal and because of the typhoon there was work for everybody and no one could assist the plaintiff. There was no time limit for her to finish the work and she could spread it over a longer period of time to complete. I accept their evidence and I find that the plaintiff was not pressurised by her superiors to finish her work. What her superiors did on 23rd May 1989 did not contribute to her injury on that day.

15. Mr Keung Man Ting who took in the plaintiff said that when the plaintiff first joined, she was taught how to handle garbage bags filled with refuse and was instructed that she should carry out her duties according to her abilities. She was told that if she found one full bag too heavy for her, she should split it into more bags for easier handling. The plaintiff was allowed to regulate the weight of the bags so that she could cope with them.

16. The doctors who examined the plaintiff for the purpose of this trial said that the injury on 23rd May 1989 was consistent with the plaintiff's swinging the garbage bags or lifting them when she dump them into the containers. Their opinion is that what happened on 21st April 1989 was a minor injury which recovered very quickly in a few days and it had no connection with the injury on 23rd May 1989.

17. On this medical evidence which I accept, whether or not the defendant knew the plaintiff's back problem on 21st April 1989 is immaterial to the cause of the injury on 23rd May 1989. The injuries in April and May 1989 involved different areas. The one in May was not an aggravation of the one in April 1989. The injury in May was not caused by the plaintiff's repetitive swinging motion in dumping the garbage over a period of time. It was a separate incident.

18. Except the plaintiff's words, there is no evidence as to what was the weight of the garbage bag when full. The plaintiff said it would be around 50 lbs. Defence medical expert Dr Yu said 50 lbs was not an exceptionally heavy load for a woman worker doing the work the plaintiff was employed. However, whether the load was too heavy for her depended on other factors such as the physical fitness of the worker, whether it was routine work and how fast the work was to be done. The evidence in respect of this aspect is scanty.

19. The plaintiff's case is that after the plaintiff returned to work on 28th April 1989, Mr So and Mr Wong knew she had a weak back and they should not have told her to do the strenuous work of clearing the refuse left on the parks after the typhoon. As I said before I found that neither Mr So nor Mr Wong could have known the plaintiff still had a back problem when she returned to work. There was no evidence that prior to the injury on 23rd May 1989 the plaintiff could not cope with the work. Having regard to the doctors' evidence that the injury in April and the injury in May were not connected, I do not accept that the defendant was at fault in requiring the plaintiff to perform her normal duties on 23rd May 1989.

20. The plaintiff was hospitalised for the injury on 23rd May 1989 and Mr So visited her in hospital. On discharge she was granted a total of 60 days sick leave. She resumed duty on 23rd July 1989. She said she handed her physiotherapy treatment card and sick leave certificate to Mr Wong Siu Kuen who had taken over the position of supervisor from Mr So. She said she also gave him a certificate recommending light duties. No such certificate has been produced. The plaintiff did not rely on this certificate. The plaintiff said she requested light duty but it was refused by Mr Wong. She performed her normal duties for 15 minutes but was unable to continue. Mr Wong then instructed her to pick up refuse. She squatted down and did this for 20-30 minutes and she felt a sharp pain. She did not mention it to anyone until lunch time when she told it to her colleagues. She said she could not stand but squatting down made her feel more comfortable. After lunch she still felt pain and she told Mr Wong about it. She then went to the Prince of Wales Hospital where she was treated and thereafter granted 378 days sick leave in total. Dr Wu called by plaintiff agreed that the work of squatting down picking up rubbish was lighter duties than the plaintiff's normal duties of sweeping and cleaning. Dr Wu and Dr Yu both agreed that if a sick leave certificate does not indicate that the patient requires further treatment it can be taken that when the leave expired the patient is well enough to resume his previous work and daily activities. If there are complications or the patient is otherwise not fit to resume normal work and activities, the doctors would have indicated that on the sick leave certificate or on a separate memorandum. Dr Wu said he would not allow a patient to go back to work until her back had recovered. When the plaintiff resumed work on 23rd July 1989 after 60 days sick leave, there was no indication that she was not fit to resume her normal duty. I accept the doctors' evidence and infer that when the plaintiff resumed work on 23rd July 1989 she had recovered from her 23rd May 1989 injury. I find that Mr Wong could not have known she had the back problem. After the plaintiff complained to him that she could not perform her normal work Mr Wong assigned light duties to the plaintiff. Mr Wong was doing what he could in the circumstances to enable the plaintiff to perform her duties in a manner she could cope with. Mr Wong indeed took heed of her request despite there was no doctor's recommendation for light duties. Dr Wu said that the July injury would not have made any difference in the long term to the plaintiff's previous injury even though the July injury could make her more painful. He said the injury in July was consistent her squatting down to pick rubbish. The injury could have been caused by her not knowing that squatting would cause her harm even though she had recovered from her earlier injury. I do not see any fault on the part of Mr Wong in assigning her to do the duty of picking up rubbish.

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

22. The first accident in April 1989 occurred when the plaintiff used a longer than usual broom to sweep the parks. The plaintiff had been instructed on how to perform her duties. She had previous experience in cleaning work of this nature which required no special skill and instruction peculiar to her duties. There is no evidence on the length of the broom in question or it was an unsafe tool. In Dr Wu's opinion, the likelihood of injury in sweeping is very much dependent on the length of the handle of the broom and the way the broom was handled. The plaintiff does not put her case that her injury was the result of repetitive sweeping motion over a long period of time so that the defendant should warn her of the risk of injury. The plaintiff's case is simply that the injury on 21st April 1989 was a single isolated incident. Thus, the case of Ping and Ors v. Esselte Letraset Ltd. [1992] 1 PIQR 74 can be distinguished from the facts of the present case. Although Dr Wu said her injury on 21st April 1989 was not inconsistent with an injury caused by sweeping motion, Dr Yeung said that there was no definite history of injury in the first accident which was probably back trauma or fatigue after long hours of work. Dr Yu also said the injury in April was not significant and unlikely to account for any permanent functional deficit. I am therefore not satisfied that the injury on 21st April 1989 can be attributable to the defendant's fault whether in the sense of failing to provide a safe tool or a safe system of work.

23. As regards the accident on 23rd May 1989, it is not challenged that the plaintiff had been instructed that she should not fill the bags to such capacity that she would not be able to handle it safely. The plaintiff's complaint is that the defendant did not instruct her as to the posture she should adopt in dumping the bags of refuse or warn her of the risk involved. That is failure to provide a safe system of work. The plaintiff relied on Ping and Ors v. Esselte Letraset Ltd. to the extent that where there was no real programme of educating and warning employees of the risks inherent in their work of the various injuries which the plaintiffs suffered, the failure by the defendant to give warnings to the plaintiffs amounted to a breach of duty of care to them. That may be the case where the work involved is of a complicated nature and the inherent risks are not apparent to the worker. In this respect it is pertinent to refer the judgment in Winter v. Cardiff Rural District Council [1950] 1 AER 819 in particular what Lord Oaksey said at p.822 -823:

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

Putting bags of refuse into refuse bins is a simple operation which the plaintiff had performed since she took up employment as a cleaning worker and before she started working in the two parks and playgrounds. Unlike the circumstances in the cases cited by the plaintiff (Lai Wah Wai v. Castco Testing Centre Ltd. [1996] 2 HKC 44; Kinsella v. Harris Lebus Ltd. (1964) 108 SJ 14; Hamilton v. Western SMT Co. Ltd (1977) SLT 66 where the plaintiffs there were required to move or lift loads which were of such fixed weight that the plaintiffs could not reduce and the defendants there were held to be liable for requiring the plaintiffs to lift these loads, leaving to them to decide whether to call for assistance.) The plaintiff in the present case was free to decide on the weight of the bags and how to carry out this simple operation in a way most suitable to her physical ability. There is no conclusive evidence that the swinging motion was not a proper one to dump the bags of refuse into the refuse bins. Dr Wu did not say this was a wrong posture. His evidence is that it all depended on the size and weight of the bag and physique of the person performing this operation. The plaintiff also relies on Osarak v. Hawker Siddeley Water Engineering Ltd. (The Times 29.10.82) where the employer of a tea lady who was required to lift a heavy tea pot to provide tea to office staffs within a tight time schedule was held liable for her injury as a result of her continually lifting of the heavy pot. In that case, the plaintiff alleged that the employer failed to provide extra tea pots so that she need not lift such a heavy weight and failure to provide a stand for the tea pot to rest. The facts of that case are different. The plaintiff here was not required to perform her work on a tight time schedule. As I have mentioned before, the evidence which I accept is there was no time limit for her to complete her work and on 23rd May 1989 where she had no assistance from other workers, she was allowed to spread the work over a few days' time. There was an unlimited supply of garbage bags so that she could always spread the load over a number of bags in suitable weight for easier handling. There was nothing that prevented her from doing so. There is no evidence that the bags of refuse were outside the plaintiff's load safety limit.

24. The accident in July 89 was caused when the plaintiff squatted down. Dr Wu's opinion is, as I mentioned before, that it did not aggravate the May injury. It might have caused more pain in the short term, it made no difference in the long term to the injury in May. Dr Yu considered this injury was not significant and similar to the one in April 89, it was unlikely to account for any permanent functional deficit. On that medical evidence it cannot be said that continuing her normal work after she resumed duty on 23rd July 1989 might be an aggravating or perpetuating factor in respect of the May injury. In any case, she was assigned to the lighter duty of picking up refuse.

25. No doubt the plaintiff was injured in the course of her work. She had been compensated under the employees' compensation scheme. The fact she was injured does not mean that the defendant should be blamed. She must proved her employer failed to take reasonable care. I am unable to conclude on balance of probabilities that in respect of the accident on 23rd May 1989 the defendant was at fault to take reasonable care and was in breach of their common law duty of care towards the plaintiff.

26. I reach the same conclusion in respect of all other injuries. I find that the plaintiff has failed to prove case against the defendant. The claim for damages is dismissed. Judgment entered for the defendant with costs to the defendant. Plaintiff's own costs to be taxed in accordance with the Legal Aid Regulations.

(Arthur Leong)

Judge of the High Court

Representation:

Mr Albert Tsang, inst'd by D.L.A., assigned for Plaintiff

Mr Nicholas Bradley, C.C. (Attorney General's Chambers), for Defendant