Wong Sau Lai v. Cathay Pacific Airways Ltd
Read the full judgment text of CACV 388/2003 on BabelCite. This Court of Appeal judgment was delivered on 25 February 2005.
1. This was an appeal from a judgment of A Cheung J given on 24 October 2003 in an action for personal injuries based on negligence. He held that the defendant had been negligent but that the plaintiff had been guilty of contributory negligence. He awarded a sum of $787,100 to the plaintiff together with interest. The defendant appeals both in respect of liability and quantum. There was no cross appeal.
Cited by 4 cases · Cites 1 case
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cacv 388/2003 in the high court of the hong kong special administrative region court of appeal civil appeal no. 388 of 2003 (on appeal from HCPI NO. 111 of 2002) ____________________ BETWEEN
____________________ Before: Hon Rogers VP, Le Pichon and Yuen JJA in Court Dates of Hearing: 15-16 September 2004 Date of Handing Down Judgment: 25 February 2005 ____________________ J U D G M E N T ____________________ Hon Rogers VP: 1.This was an appeal from a judgment of A Cheung J given on 24 October 2003 in an action for personal injuries based on negligence. He held that the defendant had been negligent but that the plaintiff had been guilty of contributory negligence. He awarded a sum of $787,100 to the plaintiff together with interest. The defendant appeals both in respect of liability and quantum. There was no cross appeal. Background 2.The plaintiff was a cabin attendant employed by the defendant from 1994. On 17 November 2000 she was working on board a flight to Tokyo in the aft business class cabin of a Boeing B777-300 aircraft. Shortly after takeoff the plaintiff, as the junior of the three crew assigned to the aft business class cabin, assisted the senior purser in serving cocktails. The senior purser would take the orders for the cocktails and these would be prepared and served to two rows of passengers at a time. It would seem that the senior purser would normally remain in the passenger cabin whilst the cocktails were brought by the junior attendant and served on a trolley. If one of the passengers were to ask for an additional drink which had not been requested when the orders were originally taken, the junior attendant would be asked to go and get the drink. There was a certain amount of time pressure when serving the drinks. Although the flight was one to Tokyo where time was not short, the evidence was that effort was made not to keep business or first class passengers waiting. 3.The alcoholic beverages were kept in a cart. The aft business class galley had two half carts for alcoholic drinks. The bottles of alcoholic beverages and other items were stored in the carts by the caterers. It is the responsibility of the junior cabin attendant, in the position that the plaintiff was, to open the cart prior to takeoff and to check the seal on the cart against the number of the seal written on the list of contents inside the cart. Each cart is rectangular and about 4 feet tall. The wheels at the bottom can be locked. The door at the front can be locked. The cart is constructed of aluminium with a central horizontal dividing panel. The sidewalls of the cart are formed with horizontal ribs at various levels that serve as rails upon which grey drawers and possibly other items such as trays may be slid. These ribs would also, no doubt, provide a measure of rigidity for the sidewalls of the cart. In addition to the grey drawers in which horizontally laid bottles, glasses and other items such as soft drink cans and packets of fruit juice can be stored, there is a blue drawer which is constructed in the shape of a crate. Both the blue and grey drawers have a reticulated construction. The blue drawer is reminiscent of crates that are used to transport bakery products, particularly because its end walls are constructed with handle grips. Unlike the grey drawers, the blue drawer is not slid on top of horizontal ribs, it is placed on the central horizontal dividing panel and there are no corresponding ribs there. 4.Prior to the carts being loaded on to the aircraft, they are prepared by the caterers. It is standard practice that there are no more than 13 bottles placed in the blue drawer. The judge held that this was so in this instance. The bottles will normally be of differing heights. It is convenient to place the shorter bottles in the front and the taller bottles at the back but whether the caterers will always do that is another matter. The advantage of having the blue drawer constructed in the form of a crate with handle openings is that it can be lifted out of the inside of the cart and placed on the top so that the bottles in the blue drawer, which then functions as a crate, are easily accessible. One of the photographs in the case shows this. It suffices to state at this juncture that there is no complaint about the cart in so far as it is so used. It is standard equipment throughout the airline industry and as a means of containing alcoholic beverages and other items to be stored on an aircraft, it is unexceptionable. It is clearly safe when the cart is stowed away and no complaint has been made about possible difficulties when the blue drawer, or crate, is lifted out and placed on top of the cart. 5.The plaintiff was injured when she was attempting to take out a bottle placed at the back of the blue drawer. It was her evidence that the drawer had been overloaded and that although she followed the approved procedure, the blue drawer toppled over and hit her knee, some of the bottles broke and that she was also cut in the process. A cabin safety report was filed by the in-flight services manager, a Miss Young, whose evidence the judge expressly said that he accepted. Although the plaintiff worked on 9 subsequent flights between November 2000 and March 2001, she said that she had done so with difficulty and thereafter she was on sick leave. The defendant had tried to persuade the plaintiff to enter a rehabilitation programme which would have entailed a period of time working on the ground followed by a period of time working in the air. If, thereafter, the plaintiff had been unable to have continued working as a cabin attendant she would have been given retirement on medical grounds. As it was, for her own reasons, the plaintiff refused to enter the rehabilitation programme and eventually resigned. In January 2003, the plaintiff’s claim for employees compensation was heard and the plaintiff was held to be “not fit nor suited for the work of a cabin attendant”. 6.It is pertinent to set out the basis upon which negligence was alleged in the Statement of Claim. In paragraph 3, the particulars of negligence are given in the following form:
Particulars (A) and (B) echo paragraph 2(C) of the Statement of Claim. 7.At the trial the plaintiff’s case had been put very heavily on the basis that the blue drawer had been overloaded and that extra bottles had been “stuffed” there. That allegation was considered throughout the trial by the judge. He rejected it, in some detail, in his judgment. The judge appears to have found that the accident happened when the plaintiff was kneeling down in front of the cart and pulling the blue drawer. Although not expressly so stating, he appears to have considered that the accident happened when the drawer slipped from the plaintiff’s “fingers, and dropped onto her right knee”. That is how the contemporaneous cabin safety report was written by the in-flight services manager and the judge accepted that she had recorded what the plaintiff had told her. In this respect the judge clearly did not accept the plaintiff’s evidence that she was following the procedure she had been taught. 8.As already mentioned, the judge rejected the plaintiff’s evidence that the blue drawer had been overloaded. Nevertheless, he did go on to say, in paragraph 25, that “…if the blue drawer was indeed overloaded and improperly stacked with bottles as asserted by the Plaintiff, as a matter of elimination and drawing inferences, it was the plaintiff who was responsible for the condition”. I would simply observe, at this stage, that such an alternative holding might be relevant if the judge were to have dismissed the plaintiff’s case entirely. But in so far as the judge allowed the plaintiff’s claim in part, that statement provides no ground for reassurance that the correct decision has been arrived at, no matter what, even on the basis that the drawer had been overloaded. It might show at least added contributory negligence on the part of the plaintiff as opposed to negligence on the part of the defendant. 9.The judge however held that the plaintiff had been partially responsible for the accident. His finding of negligence is summarised in paragraph 29 where he said:
10.The judge then went on to consider possible ways in which the risk of injury to the crew would be reduced. Two of those related to the construction of the drawer or the bar cart itself and one of those related to a suggestion that the blue drawer should be placed at the bottom of the cart. Finally the judge held that the plaintiff had been guilty of contributory negligence and apportioned liability on the basis of 50%. It would thus appear that the resolution of this appeal on liability turns upon the question of the extent to which it was reasonably foreseeable that a cabin attendant in the position of the plaintiff would fail to follow instructions and approved procedure. 11.As has already been observed, the bar carts in issue in this case were standard equipment in the airline industry. That was confirmed by Mr Eddie Yau, the Service Equipment Logistics and Operations Manager of the defendant. He gave evidence that he was familiar with the equipment used on all airlines since the defendant’s catering service, which he referred to as “C.P.C.S.”, were agents for all other airlines in Hong Kong and they would see all the equipment which the other airlines have. He also added that there were only 4 major suppliers for such carts and they all produced standard carts with similar rails. 12.There are some factors in the case, which to my mind are important, to which in one instance no reference has been made in the judgment and in another there has only been a passing reference and the significance appears to have been overlooked. They all relate to the system of work. I have already mentioned the fact that the equipment is standard in the airline industry. Another of those is an aspect which also impinges upon Mr Yau’s evidence. He had not heard of a similar accident with a blue drawer. Neither had any of the other witnesses, particularly the in-flight services manager and a Miss Carmelina Heredia, who is an in-flight services trainer, become aware of any accident with a blue drawer similar to that which befell the plaintiff. Neither, for that matter, did the plaintiff, who had worked for more than 5 years as a cabin attendant, suggest that there had been other similar accidents. It is not known whether discovery was pursued as to whether there had been any other accidents. 13.Ms Eu SC, who appeared for the plaintiff, sought to suggest that the document entitled “Safety at the Workplace”, produced by the defendant’s in-flight services department, indicated that there had been accidents with carts and drawers. That is correct, but a full reading of the document does not indicate that any accidents similar to the plaintiff’s had occurred. Indeed, although it is said that 18.8% of injuries were caused by carts, when the page relating to carts is considered it can be seen that the injuries were probably caused by unserviceable carts, or when pushing or pulling heavy carts, or when incorrect posture was used in pulling or pushing carts, or when leaving carts unattended and not applying the brakes, or when the doors on carts are left unlatched and so forth. There is no specific page relating to drawers, which apparently are the cause of some 7.1% of the injuries. There again, personal experience might indicate that it is easy to have accidents involving drawers that do not entail the drawer falling on someone. Specifically, no doubt, a common cause of accidents with drawers relates to drawers that have been left open. The training and system of work 14.During the course of argument it became increasingly clear that if the defendant had been guilty of negligence it had to be in relation to the system of work and not in the nature of the equipment as such. To put it another way, if there were negligence it was in having a system of work which entailed a cabin attendant retrieving a bottle from the back of a cart when the bottle was in a blue drawer. Hence in my view the importance of giving consideration to what that system was and specifically the training of cabin attendants. 15.The evidence relating to how the work should be carried out was intertwined with the evidence as to training. Miss Heredia, gave evidence that, as an in-flight services trainer, she was responsible for training the newly recruited trainee flight attendants in December 1994 and early January 1995. That batch of recruits included the plaintiff and Miss Heredia remembered the plaintiff during that time as she had to ask her how she pronounced her English name. The plaintiff also seems to have remembered Miss Heredia during the induction training. Miss Heredia explained in her evidence the instruction that was given as to the proper procedures for using a bar cart and that included, but was not limited to, the procedure for obtaining drinks from the blue drawer of the bar cart. That procedure was as follows:
16.Miss Heredia confirmed that these instructions and a corresponding demonstration were given to all the trainees. The training did not stop with a simple demonstration. As Miss Heredia explained when giving her evidence, everybody had to demonstrate the routines such as the correct method of handling the blue drawer, or crate. She said that when she taught something everybody had to demonstrate to show her that they did it correctly. If necessary there would be further training immediately and then the recruit would have to demonstrate again until they got the procedure correct. There would then be a second time when the trainees had to demonstrate that they followed the correct procedure because there would be an assessment. That assessment was seemingly made during the course of the training. There was yet a further assessment at the end of training, where, again, the recruit had to demonstrate the correct procedure. After training, each cabin attendant would have a further period of 6 months during which she would be under a certain amount of supervision. 17.It is evident on considering Miss Heredia’s evidence that the training provided by the defendant was careful and extensive. The procedure taught in respect of the blue drawer would indeed seem to be a sensible way of handling a drawer or tray which is being partially pulled out from a supporting base. It is the sort of movement commonly used when cooks pull a roasting pan part way out of an oven to see whether the meat is cooked or to baste it. No chance was taken that the trainee might not have understood or might be unable to carry out the correct procedure. Indeed, the passage from paragraph 29 of the judgment quoted above makes clear that the judge fully understood the procedure taught in respect of the blue drawer and considered that, if followed, it avoided risk of injury. Although the plaintiff’s evidence was not specific and was hedged with observations that she could not recollect various matters, it was clear that the plaintiff, nevertheless, professed to be familiar with and to carry out the procedure set out in paragraph 15 save for the fact that she favoured squatting as opposed to simply bending the knees. In the course of argument, on the basis that there was no dispute between the parties that proper training was given, Ms Eu did not seek to challenge the appropriateness of the training. Indeed, she was not anxious to refer to it in the course of submissions, even when asked about it. The burden of Ms Eu’s argument was that since there was no stopping mechanism installed to prevent the drawers falling off or being pulled excessively out of the cart and that there were no tracks or rails inside the bar cart which fitted protrusions on the blue drawer and that the blue drawer was heavy and if pulled out excessively was liable to topple that, in itself, made it reasonably foreseeable that there was a risk of injury if the drawer were pulled out excessively. Coupled with that it was said that the judge was justified in finding that momentarily failing to follow standard procedure was reasonably foreseeable. Moreover, reference was made in the course of argument to the fact that air turbulence was liable to cause the drawer to move. Ms Eu relied on the speeches in the House of Lords in Hughes v The Lord Advocate [1963] AC 837 to the effect that it is not necessary to foresee the precise way in which an accident might happen provided it is reasonably foreseeable that the circumstances were dangerous. 18.Despite careful consideration given to this case, and despite the fact that not only does my conclusion differ from that of the judge below but I apprehend it will differ from my fellow judges, I cannot see that the defendant has been guilty of negligence. The construction of the bar cart and blue drawer 19.As indicated the bar cart is standard equipment throughout the airline industry. The blue drawer is designed to be kept in the cart to hold the various bottles whilst it is in the cart and then to be lifted out of the cart and placed on top of it when required. It seems to me to make it wholly undesirable as well as impractical to put restraints on the blue drawer, or crate, or restraints inside the cart which would prevent the blue drawer being easily lifted out of the cart. 20.Quite apart from the fact, referred to by Mr Yau when giving evidence, that the cart was a multifunctional cart and therefore it was impractical to incorporate restraints as part of the construction, no form of restraint has been suggested either in writing or orally in argument which to my mind would be practical for use in such a cart. Any restraint or device that would hinder the lifting of the drawer out of the cart would not merely be impractical but would be potentially dangerous. If a flight attendant had to disengage a restraint when lifting the blue drawer out of the cart it would be cumbersome. With any restraint mechanism, if it is not disengaged properly, the item in question, in this case the drawer, will not come out when pulled and there is likely to be a wholly undesirable counter-reaction to the lifting movement of the cabin attendant. As Mr Yau said in his evidence such a device would cause a great deal of inconvenience to cabin crew as well as the caterers. None of the other airlines incorporated any such device in their equipment. 21.The first suggestion put in the particulars of negligence was that there should be sliding rails for the blue drawer. Although some drawers which one sees in other places have sliding rails they are, generally speaking, fixed drawers. The blue drawer needs to be lifted out of the cart and placed on top of the cart. Even if it were possible to have sliding rails for a drawer that is lifted out, the difficulty would be that once the blue drawer is lifted out of the cart to be placed on top, the sliding rails would be a potential hazard because they would protrude from the side of the cart when the drawer was pulled out and would constitute a considerable danger unless and until pushed back. 22.In any event, this does not seem to have been a matter which was considered by the judge in his judgment. He raised his own suggestions as to construction towards the end of Mr Yau’s evidence. He suggested that the blue drawer should have some other protrusion similar to the grey drawers at the top edge which would cooperate with a rib or rail on the cart. By protrusion, I understand him to mean a flange along the upper edge of at least the longitudinal side of the blue drawer. This was not a matter which had been raised in the pleadings and when Mr Yau was confronted with this suggestion he said that the grey drawer had been so designed with its protrusion (i.e. flange) for a particular purpose. In the course of argument Mr Huggins SC, who appeared for the defendant, said that the failure to raise this suggestion earlier was prejudicial to the defendant since it had not been able to prepare its evidence to provide the reason to which Mr Yau referred. I can well understand that this so. Be that as it may, it seems to me quite clear that if the upward movement of the blue drawer were to be restrained either by a flange at the top of the drawer cooperating with the underside of a rib or rail or indeed by the bottom of the drawer cooperating with a rib or rail immediately above it, it would make it extremely cumbersome for the cabin attendant to remove the blue drawer because it would not be possible to execute a lifting movement until the drawer was completely clear of the cart. This would make the fulfilment of the task, for which the blue drawer was clearly constructed both difficult and potentially dangerous. I would add that when examining the cart and grey drawer whilst they were in court, it was by no means clear that the presence of the flange at the top of the drawer would prevent the grey drawer from falling if it were pulled out excessively. 23.Moreover, the suggestion of putting a protrusion (flange) at the top edge of the blue drawer seems to have been something put by the judge at pages 292 to 294 of the transcript. However the discussion in the transcript appears to me to be rather muddled. It is not altogether clear that the witness understood exactly what the judge was indicating. He said:
The question which the judge was putting to the witness stemmed from the top of the page 293C. After receiving the answer that the witness thought that there was some specific reason why there was a flange at the top of the grey drawer the judge suggested that it would not cost very much to produce the blue drawer like that. The witness agreed but also said: “I think it is a very good suggestion. We can arrange this one to be put at the bottom”. This line of questioning seems to me to achieve nothing. It was imprecise, the witness was not in a position to give properly considered answers to the questions. The suggestion had never been put to the witness before but more importantly when the witness said that a flange could be put at the bottom he was clearly not saying something that was in line with the judge’s suggestion at 293C which appears to have been that the flange would be at the top. It seems to me that the judge and witness misunderstood each other and were at cross-purposes. 24.There was also a suggestion in paragraph 33 of the judgment that the height of the blue drawer should be increased on the basis that it would make it more difficult for the bottles inside the drawer to tilt or topple. For my part, I can only say that I doubt such a proposal would be effective in any way. The only bottles which would be in contact with a relevant side of the drawer would be those at the front and their tendency to “tilt or topple” with the present arrangement, unless the drawer itself is at a substantial angle to the horizontal, has not been shown. 25.I would mention that in actions involving intellectual property rights, where the feasibility of a design of equipment and questions of whether a particular construction is operable (which arise where there are issues of “novelty”, “lack of inventive step” (previously referred to as “obviousness”) and “susceptibility to industrial application” (previously covered by “utility”) are matters which are commonly raised, proper particulars of a proposed design or construction are required and not only is expert evidence prepared but experiments are commonly carried out with models. Design changes for mechanical equipment cannot be properly considered with a couple of imprecise suggestions or questions thrown out at the end of a witness’s evidence. This became even more clear to me after the argument. During the course of the appeal I had made some suggestions only to find out later, on further consideration, that what I had been thinking of would not provide any acceptable solution. One, in particular, related to a detent which would prevent the drawer being pulled out unless it were moved in a vertical direction both up and then down whilst being pulled out. On further consideration, it became obvious that would in itself create a danger when the drawer was being removed. Any form of added friction to the movement of the drawer, which was a suggestion made by one of the other members of the court, would also cause danger, because cabin attendants would approach the opening of the drawer where there was additional friction on the basis that it had to pulled out with extra if not considerable force. 26.In paragraph 32 of the judgment, the judge took up an alternative proposal which he had put to Mr Yau at the end of Mr Yau’s evidence namely that the blue drawer should be put at the bottom of the cart. Mr Yau’s reaction was that this would be tiring for the flight crew. They would have to squat down to get the blue drawer and it would be more difficult for them to lift it. Mr Yau said that if the blue drawer was in the centre of the cart it was easier to handle. In my view putting the blue drawer, which is apparently usually loaded to a weight of 13.5 kilograms, at the bottom of the cart would be courting trouble. The likelihood of back injuries to cabin crew who would have to reach nearly to the floor, either by squatting or simply by bending, to lift a not insignificant weight would, for those of us who are cognisant of back trouble, be something that would be considered a recipe for disaster on a regular basis. 27.After I had reached the above conclusions and indeed prepared the above, I needed to make 2 air journeys both on aircraft operated by the plaintiff. With the permission of the in-flight services manager, on each occasion I was able to stand at the side of the rear business class cabin and observe the way in which the work was carried out, specifically when cocktails and food were being prepared and served. I wished to do so because I was concerned that, since I anticipated my views would be different from those of the other judges, I might be applying a standard which was out of touch with reality. In doing so I did not consider I was gathering evidence, I was simply using the occasion to familiarise myself with the situation that prevailed as a background to the allegation of negligence, in much the same way as Sellers LJ took note of the common state of paving stones in Griffiths v Liverpool Corporation [1967] 1 QB 374 at 382. 28.My first reaction was that to consider the half cart and blue drawer in isolation was quite wrong. Almost everything in the galley is stored in drawers. The drawers were contained in cabinets or carts. In each case there were doors to the carts and cabinets. The cabin attendants are precise and disciplined in their actions to such an extent that it was certainly apparent that they were concentrating on their work and were not, apparently, concerned that there was an observer. Of necessity everything was kept in a place. When a door was opened it was not left in a position where it could swing. It was either shut immediately or secured. Carts were never left with the wheels unlocked. Drawers were pulled outwards so that something could be taken out but in each case the drawer was only pulled a small way, probably about a quarter of its length. Significantly, the drawers were held firmly or at least supported from the underneath on each occasion. This was no matter whether it was a grey drawer from which for example a packet of fruit juice or tin of soft drink was taken or a blue drawer from which a bottle of sherry or vermouth might be taken. 29.In addition to the blue and grey drawers there were also purple drawers. These were similar in size to the blue drawers but they have solid, i.e. unreticulated, side walls. It appeared that these purple drawers contained metal items such as coffee pots and dishes. They were also used to store used crockery. Although these purple drawers had flanges at the top longitudinal edges when the cabin attendants pulled them out of the cabinet they supported them either by holding them firmly by the handle similar to that of the blue drawer or else underneath. 30.It did not take long to appreciate that if all the drawers or containers, whether they be grey, purple, blue or silver, were not firmly held and supported when opened and, unless they were being removed entirely, if they were not only pulled a short way open there would be more than just a few bottles on the floor. The same was true of the trays which were also racked in the cupboards and carts. Many of the drawers contained hot items. There were drawers that were above head height. There was at least one type of drawer with sliding rails, but that, seemingly, could not be removed from the cabinet in which it was stowed. Interestingly, that drawer opened out over a work surface, so although it might not be intended that it should be supported by a hand or arm when opened, there was no danger at all since there was a solid surface underneath it at all times. 31.Hence the importance of the procedure, inculcated during training, referred to only briefly in the passage from paragraph 29 of the judgment that has been highlighted in the quotation above, was apparent. Not only is it wrong to consider the cart and blue drawer in isolation but the whole operation cannot be considered along the lines of a restaurant kitchen. It is no accident that one does not see cabin attendants handling plates and crockery like consummate jugglers as happens in many restaurants. There is clear ingrained routine to every action in the galley as well as outside in the passenger area. The blue drawer with its bottles of alcoholic beverages is no different in the fundamental way it is handled than any other drawer. It may be amongst those that contain the heaviest contents, but in so far as it has to be handled with some degree of care and deliberateness it is no different to any other. In the business class section, at least on the flights that I was on, the blue drawer was not taken out of the cart and placed on the top of the cart. In the economy class section it seemed that drawers were placed on the top of the carts and used in a similar way to that shown in the photograph in the bundles. 32.In summary, I consider that the cart is a standard cart used throughout the airline industry and no complaint can be made of its construction or use until such time as it is suggested that it was misused by requesting, explicitly or impliedly, one of the cabin attendants to retrieve a bottle from the back of the cart. Thus it is unlike the unguarded manhole cover and lantern in the case of Hughes v The Lord Advocate which was a danger in itself. When the cabin attendant retrieves a bottle that is at the back of the cart it is no different from retrieving a bottle at the back of any cupboard. It is difficult to see how that, in itself, could be a dangerous activity. The allegation of danger can only come because it is suggested that it is dangerous that the airline crew should be encouraged or permitted to pull the blue drawer forward in order to make it easier to reach a bottle at the back. I cannot agree with such a suggestion. The crew on the aircraft who are responsible for serving the drinks have been carefully trained. 33.In this instance the first thing that might be observed is that the judge said at paragraph 16 of the judgment that he accepted the version of events as described in the cabin safety report filed by Miss Young who said that she had been told the contents of it by the plaintiff. In that report it was said that the drawer slipped from the plaintiff’s fingers and dropped onto her right knee. In that respect, in so far as the plaintiff was holding the drawer in the left hand rather than supporting it on her left forearm and using her right hand to pull the drawer forward, she was acting contrary to the manner in which she had been instructed. It is also pertinent that the plaintiff had been working as a cabin attendant for some 5 years. In those circumstances, quite apart from the induction training, she was clearly well acquainted with the equipment on the aircraft and would have known from experience of the construction of the bar cart and the drawers thereof including, in particular, the blue drawer. The judge’s finding that the blue drawer would not topple until pulled out at least halfway and even if grossly badly loaded, which he held was not the case, would still need to be pulled a third of the way out, ties in with the fact that the plaintiff put forward her case on the basis that she had only moved the drawer a minimal amount. That is consistent with the appreciation, as the plaintiff volunteered in the course of her evidence “we have always said safety comes first whether passengers or with crew”. Thus the plaintiff by training and experience was fully conscious of the fact that she was working in an industry where safety was regarded as being of prime importance. 34.Although, in the course of argument, it was said that it would be difficult for a cabin attendant to be conscious of what constituted exactly one-third of the blue drawer when pulling it forward, that seems to me to ignore the fact that the blue drawer appears to have had 4 rows of bottles. Whether one is talking of one-third of the length of the drawer or an amount which would not cause the drawer to topple, common sense would indicate that the drawer should only be pulled out to the extent of one row of bottles. This is quite apart from the fact that all drawers seemed to about the same length. Since the same procedure is followed in respect of all of them, I can hardly see that a trained cabin attendant with 5 years experience is going to have any difficulty in knowing how far the drawer should be pulled out. Neither do I consider that anything is added to the argument on the basis that air turbulence can be expected. Air turbulence is, no doubt, one of the hazards of air transport, but it would not make it any more unsafe to reach for a bottle of the back of the cart than it would be to take the blue drawer entirely out of the cart. 35.Ms Eu sought to rely on the proposition that the employer must have in mind not only careful workers but also workers who are inattentive. Reliance in this respect was placed on the speech of Lord Reid in Smith v National Coal Board [1967] 2 All ER at 595E-F. That passage, however, is not absolute in its terms. The case related to an experienced shunter who was walking by the side of a railway track where he would have to uncouple wagons from a train. It was held that he had slipped and fallen on a mound of debris which had resulted from a bulldozing operation. But in the passage relied upon Lord Reid said:
36.Lord Reid’s strictures as to an employer having to cater for an employee who is not as attentive as can be expected was thus not absolute in its terms but was subject to a qualification that that if proper warning is given the matter may be very different. 37.In this respect, Lord Reid was echoing what Lord Oaksey said in General Cleaning Contractors Limited v Christmas [1953] AC 180. At page 189 he commenced his statement on the basis that it was the duty of the employer to give such general safety instructions as a reasonably careful employer who had considered the problem presented by the work would give to his worker. He went on at page 190 to say that in the particular case the risks could have been eliminated or lessened by orders that for example that one sash of a window must always be kept open when a handhold system is adopted. 38.I would also refer to what was said at page 192 by Lord Reid and at page 195 by Lord Tucker that the plaintiff who seeks to have condemned as unsafe a system of work which has been generally used for a long time in an important trade undertakes a heavy onus because, if he is right, it means that practically all the employers in the trade had been habitually neglecting their duty. Whilst this is not an absolute bar to the plaintiff’s success it is, to my mind, a significant factor. This is particularly so in this industry because the allegation has to be that despite the safety conscious aspects of the industry, the defendant allowed a situation to continue when it was reasonably foreseeable that an accident would occur. The importance of this point also relates particularly to the question of the construction of the apparatus. I have already indicated the proposals for changes which seem to have particularly influenced the judge, in so far as they could be implemented, were highly undesirable. The extent to which an employer should cater for the inattentiveness and carelessness of its employees must depend upon the circumstances, the instructions given to the employees and the extent to which it is impressed on all employees, as the plaintiff herself volunteered, that safety is of paramount importance. Whilst one has considerable sympathy with any employee who was injured in the course of carrying out his or her work, liability for personal injuries is still based on negligence. In contrast to claims under the Employees’ Compensation Ordinance, Cap. 282, claims of the present nature are dependant upon fault being shown on the part of the employer. In the circumstance I consider that this appeal should be allowed. Quantum 39.Since preparing the above I have had the advantage of seeing the judgments of Mrs Justice Le Pichon and Madam Justice Yuen. In respect of quantum, I note that the conclusion is reached that there had been over estimate in respect of the retirement benefit of $50,000. For my part I would not have been disposed to be generous in respect of the outport allowance. In circumstances where the payments were made in order to cover expenses and were never reported to the Inland Revenue, I consider that any calculation should be commenced on the basis that the money was spent on expenses and not saved. However, since there may be compensating factors indicating that the overall calculation is more a matter of art than science, there seems little point in pursuing that line of enquiry. In those circumstances I would not insist on dissenting on this point. Hon Le Pichon JA: 40.This is a personal injuries claim by the plaintiff, a cabin attendant, who was injured on a flight from Hong Kong to Tokyo on 17 November 2000. The judge awarded her damages but on the basis that she had been 50% responsible for the accident. This appeal by the defendant is against both liability and quantum. Liability 41.I have had the advantage of reading in draft the judgment of Rogers VP. I gratefully adopt the background facts set out in paragraphs 1 to 6 (inclusive) of his judgment and on the question whether the equipment was defective or deficient as such, I agree with the reasons given in paragraphs 19 to 24 (inclusive) and 26 of the Vice President’s judgment. I further agree that the central issue in the appeal on liability is whether the defendant was negligent in failing to provide a safe system of work. On that issue, I differ from the Vice President and I have come to the conclusion that the defendant was negligent. My reasons appear below. 42.The task the plaintiff was in the course of carrying out when the accident happened was to retrieve a bottle situated at the back of a blue drawer stowed on the central horizontal dividing panel of a so-called half-size bar cart which is rectangular in shape and about 4-foot tall. From the photograph of one of these bar carts in the hearing bundles, it would appear that this dividing panel did not divide the interior of the cart into two compartments of equal height; rather, the upper compartment is slightly greater in height than the lower compartment. Whilst the upper compartment housed one grey drawer and a blue drawer resting on the middle dividing panel, the lower compartment housed 3 grey drawers. The grey drawer in the upper compartment was slotted into position along the uppermost set of rails or tracks. 43.A full and detailed description of the construction of the blue and grey drawers appears in paragraph 3 of the judgment of the Vice President. All I need add is the fact that both drawers are 15 inches deep, the blue drawer being 14 cm (or about 5.5 inches) high and the grey drawer being only 8 cm (or a fraction over 3 inches) high. According to the bar file of the flight in question, the grey drawer in the upper compartment contained 3 plastic bottles of mineral water of 1.5 litres each placed horizontally inside it and the blue drawer was filled with 13 bottles of differing heights standing in a vertical position. 44.It is relevant to mention that the cart is so constructed that the two vertical side panels are about an inch or so higher than the top of the bar cart. Joining the four top edges of the two vertical side panels are two raised metal rails. The hollow space thus formed on top of the cart was designed to accommodate either a grey drawer or blue drawer. Indeed, there is a photograph provided by the defendant showing the blue drawer containing bottles in an upright position placed on top of the cart. A drawer placed in that space would be secured and kept in position by the guard rails and the two side panels. 45.As noted above, the accident happened when the plaintiff was trying to retrieve a bottle of drink. Her evidence as to what then happened was summarised by the judge in paragraph 9 of his judgment in these terms:
46.The judge was not satisfied that the accident happened in the way described by the plaintiff. Specifically, he rejected any suggestion that (1) the blue drawer was overloaded or improperly stacked and (2) the plaintiff had not pulled it out by more than 2.5 inches. As to (1), the judge accepted the evidence of Ms Young the in-flight services manager who had written out the cabin safety report concerning the incident during the flight as reported to her by the plaintiff. It was Ms Young’s evidence that such a report would be shown to the crew concerned to make sure that the details were correct and would then be filed with the relevant departments of the defendant. The report recorded that the plaintiff was “pulling out a heavy drawer of wines from the bar cart when the drawer slipped from her fingers and dropped on top of her right knee.” The judge noted the absence of any mention of “overloading improper stacking or bottles tilting”. There was also no mention of these matters in an e-mail sent by the plaintiff to the administration department of the defendant 2 months or so after the accident. The judge considered these omissions significant. 47.As regards (2), the judge’s reasoning was that a blue drawer containing the standard 13 bottles and configured in the standard way, that is to say, with the tall and heavier bottles at the far end, would simply not topple and fall out of the bar cart even if it was pulled out by more than one half of its length. Conversely, had the taller and heavier bottles been placed at the front, the blue drawer would only start to topple if it was pulled out by one-third. The third scenario postulated by the judge appeared to be a via media i.e. that at least some tall bottles had been placed in the middle section or at the back of the drawer in which case it would not topple until it was pulled out to a very significant extent because the tall bottles would be caught by the bottom of the grey drawer above and would prevent the blue drawer from toppling. Whilst there was no express finding as such, it would appear that the judge considered the third scenario to have been the likely one: he noted that the plaintiff was able to locate the bottle she had wanted with no difficulty and to him that meant that at least some of tall bottles had been placed in the middle or back section of the blue drawer. On that basis, the judge found that the blue drawer had been pulled out excessively by the plaintiff. 48.The judge’s finding of contributory negligence on the part of the plaintiff was based on her having pulled the blue drawer out excessively and/or not supporting it properly with her left hand or forearm.
49.It is necessary to consider more closely the system of work and the circumstances in which the accident happened. Prior to serving as a cabin attendant on a flight, the plaintiff was required to and did attend an induction course. The course she attended was conducted by Ms Carmelina Heredia from 28 December 1994 to 2 January 1995. The course covered instructions as to how to handle a bar cart including the procedure for obtaining drinks from the drawers of the bar cart. Ms Heredia described the proper practice and procedure for performing the task of retrieving a bottle placed at the far end of the blue drawer in paragraph 8 of her witness statement. Part of that paragraph bears repeating:
50.I confess to having some difficulty in comprehending the relevance of, and emphasis placed on, the use of “the forearm” for support in the manoeuvre described. This is because the instructions were that not more than a third of the drawer needs be pulled out when removing a bottle from the far end of the drawer. The drawer itself was only 15 inches long, so a third would be no more than 5 inches which is about 30% - 40% less than the average length of an adult female hand. Given that the blue drawer rests on its own weight on top of the middle dividing panel, the forearm would not be engaged for support unless the hand could be slid under the dividing panel. Not only was it not suggested that this should have been done, the edge of that panel and the grey drawers that would be present in the lower compartment would have made it impossible. Nor has it been suggested that the flat of the hand should be pushed against the edge of the dividing panel with the hand being at a 90º angle to the forearm. 51.Ms Heredia appeared to accept in cross-examination that only the hand rather than the forearm would be used to support the bottom of the blue drawer:
Thus, notwithstanding Ms Heredia’s description of the so-called proper practice and procedure when retrieving a bottle at the far end of the blue drawer, it must follow that when the manoeuvre is correctly executed only the left hand and not the forearm would be engaged in supporting the bottom of the drawer. The forearm would only be engaged when considerably more than a third of the drawer is pulled out but that was not what the cabin attendants had been trained to do. As one would expect, the training would have focussed on the correct execution of the manoeuvre in which case the support would have been provided by the hand rather than the forearm. 52.The plaintiff’s evidence in chief and in cross-examination showed that she did use her hand to support the bottom of the blue drawer as she was trained to do:
53.At paragraph 29 of his judgment, after commenting on the fact that the blue drawer simply rested on its own weight on top of the middle dividing panel, the judge made these observations:
54.At the heart of this appeal is whether that passage can withstand scrutiny and, in particular, whether the judge was right to hold that “the risk of the blue drawer falling off the bar cart is reasonably foreseeable”. The statement that if pulled out excessively the blue drawer was liable to topple is, in my view, unexceptionable. Equally it is a fact that the defendant foresaw the need for a cabin attendant to reach for a bottle placed at the far end of the blue drawer. The system of work the defendant devised for performing this task is reflected in the training given to cabin attendants as to which Ms Heredia gave evidence. As explained in paragraphs 49 to 52 above, that system of work involved leaving the grey drawer in its place in the uppermost set of rails in the upper compartment and pulling out the laden blue drawer, albeit by no more than one-third of its length and supporting the bottom of the drawer with the other hand/forearm. 55.The defendant’s duty as employer was to devise a safe system of work. To my mind, the real question is whether the system of work devised by the defendant for the performance of that task under consideration was a safe system or whether it exposed the employee to unnecessary risks. 56.When fully loaded with the 13 bottles of drink the blue drawer is very heavy, weighing 13.5 kilos or approximately 30 lbs. Should it topple, the risk of injury is obvious. It was envisaged that cabin attendants would need to retrieve bottles stacked at the far end of the blue drawer placed in half size bar carts. The system of work devised by the defendant entailed the pulling out of the blue drawer, albeit by no more than one-third of its length. Was it reasonably foreseeable that the drawer might be pulled out excessively? Was it reasonably foreseeable that if that happened, the blue drawer would fall off the cart causing injury? In my view, the judge was right and the answer to both questions must be in the affirmative. The pulling out of the drawer would normally be accomplished by a single motion and the extent the drawer is pulled out would depend on the strength applied. It is a question of judgment how hard the drawer had to be pulled in order to achieve the desired result. The fact that the plaintiff had had 5 years’ experience as a cabin attendant at the time of the accident would suggest that she should have been familiar with the manoeuvre. But as Lord Oaksey observed in General Cleaning Contractors v Christmas [1953] AC 180 at 190,
57.From the evidence, it would appear that cabin attendants worked under considerable pressure during cabin service whether for cocktails or meals. Put differently, the tasks were not being performed in a leisurely and stress-free environment. The plaintiff’s evidence which the judge appeared to have accepted was to the effect that things had to be done “in haste” and she was “tense” and that it was “not good to make [passengers] wait”. Ms Heredia agreed that a drink should be brought to the passenger as quickly as possible especially in first and business class and should be done “in a minute or two”. 58.Given what human nature is, it is reasonably foreseeable that work pressure coupled with a momentary lapse of concentration or a moment’s inattention (leaving aside extraneous events such as air turbulence) could result in the drawer being pulled out excessively and toppling, thereby causing an accident. For her inattention, the plaintiff must bear responsibility. But it does not follow that the employer is necessarily absolved from all responsibility. Whether or not the employer has any liability would depend on whether the employer was itself negligent. 59.The question here is not whether a system of work should be prescribed. The training given for the operation is an acknowledgment that such an obligation existed. That being so, the issue is the defendant’s obligation “to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation.” See per Lord Tucker in the Christmas case at 195. In determining whether or not the employer had discharged its duty, one has to consider the system in place and whether, in all the circumstances, it could be said that all reasonable steps had been taken and that the system was reasonably safe. In this connection, Lord Reid’s observations in Smith v National Coal Board [1967] 2 All ER 593 at 595E that “[an] employer … must always have in mind not only the careful man but also the man who is inattentive to such a degree as can normally be expected” should be borne in mind. 60.In the cart in question, it would appear that the grey drawer situated above the blue drawer obstructed the retrieval of bottles from the far end of the blue drawer. But unobstructed access to those bottles without necessitating any pulling out of the blue drawer (thus eliminating or at any rate minimizing any risk of injury) would appear to be possible in at least two ways: either by ensuring that the upper compartment housing the blue drawer does not also housea grey drawer or by first removing the grey drawer (containing only 3 plastic bottles of mineral water of 1.5L each) and placing it in the space on top of the bar cart before accessing the bottles placed at the far end of the blue drawer. If, as would appear to be the case, the task in question could be performed in circumstances that would involve no or virtually no risk injury, it could hardly be said that all reasonable steps had been taken or that the system devised was reasonably safe. If so, it would follow the defendant was itself negligent. What system should be adopted is ultimately a matter for the defendant rather than the court for it is the defendant who has the obligation to take all reasonable steps to ensure that a safe system of work is in place for its employees. 61.For these reasons, I would dismiss the defendant’s appeal on liability. Quantum 62.In his assessment of damages, the judge proceeded on the basis that (1) the accident happened in November 2000, (2) the plaintiff stopped flying in March 2001, (3) she ought to have taken part in the rehabilitation programme offered by the defendant in December 2001, (4) she ought to have been compulsorily retired by the defendant in May 2002, (5) she ought to have been earning $8,000 per month in August 2002, (6) her (notional) income by October 2003 ought to have been $12,000 per month which should increase (again notionally) to $16,000 per month by October 2004. The defendant challenged the judge’s award in respect of loss of travel benefits, loss of retirement benefit and loss of earnings.
63.As a cabin attendant, the plaintiff was entitled to certain travel benefits. She was entitled to one free round-trip economy class ticket annually to any destination of her choice and unlimited travel at 10% of the defendant’s published ticket prices for all classes. There was no limit to the number of concessionary fares that could be purchased. It was also available to eligible dependants who include an employee’s spouse, parents and children up to the age of 23. Single employees may nominate either one companion (who include a partner, family member or friend) or sibling for such travel. Nominations could be varied but only once a year for the eligible sibling and once every two years for the companion nomination. The free ticket was not available once the employee ceased to be an employee but a retired employee could continue to enjoy the travel concession for himself and his dependants for life. An employee with less than 10 years’ service who retired on medical grounds would have the travel concession benefit for 10 years. 64.The judge assessed the loss of pre-trial travel benefits for an aggregate period of 2 years at $60,000 in total. In making his assessment of the loss of pre-trial travel benefits, the judge approached the matter in this way: up until March 2001, the plaintiff had suffered no loss. From April to November 2001, she was on sick leave and without the defendant’s permission she was not entitled to the benefits. So during these 8 months, what she effectively lost was her concessionary travel benefit. Although the judge had apparently come to the conclusion that the plaintiff ought to have taken part in the rehabilitation programme as from December 2001 and that she “ought to have been compulsorily retired” by the defendant in May 2002, he considered that to compensate her for the difference in travel benefits as if she had been compulsorily retired on medical grounds in May 2002 would neither be fair nor necessary on the evidence and principles. The fact was that she had resigned voluntarily and was not entitled to any travel benefits as a result. He was also of the view that it was not unreasonable for her to have chosen to resign from the defendant in January 2003, it being her case that she could no longer return to active flight duties. He made an award of $30,000 per year for the pre-trial period. The judge reckoned this to be a two-year-period comprising the 8 months from April to November 2001 and the period from May 2002 to the date of his judgment in October 2003. Whilst this may appear to involve an element of double counting for May 2002, in fact, had it run from May 2002, the total period would have been 25 months whereas the award was made for a 24-month-period only. 65.The main challenge made by counsel for the defendant was that the judge was not entitled to award anything more than nominal damages because the plaintiff had failed to adduce any evidence of the market price of tickets similar to those that had been issued either free of charge or at the concessionary rate to which the plaintiff was entitled as an employee. It was submitted that any loss could only be quantified by reference to the cost to the plaintiff of purchasing similar tickets from a travel agent by taking the travel agent price and deducting the CX concessionary price from it. As a fallback position, it was submitted that the award was still wrong because the judge ought to have found that the plaintiff ought to have taken up the rehabilitation programme as from May 2001 and, on the judge’s finding that she ought to have been compulsorily retired after 6 months, she would have been entitled to concessionary travel for 10 years thereafter and therefore would not have suffered loss in this regard. 66.Mr Sakhrani’s main point was that the plaintiff had failed to prove her damages by evidence. In her amended revised statement of damages, the plaintiff had quantified the value of the loss of travel benefits at $41,340 per annum but no particulars had been given. During final submissions below, counsel for the plaintiff had produced a schedule (“annex 4”) which was apparently a summary of 2 years’ usage by the plaintiff showing user, destination, agent’s price (A), amount paid to the defendant in respect of each use (B) and the difference between (A) and (B) to illustrate the loss suffered pre-retirement although it is unclear which two-year-period formed the basis of the summary. Taken on an annual basis, it shows 2 trips to Europe, 2 to Australia and 4 regionally. As I understand it, Mr Sakhrani only took issue with what was said to be the agent’s price (A) listed in the schedule. 67.As the plaintiff’s employer, the defendant obviously had access to information concerning the use of travel benefits during the time she was its employee. Indeed, details of that use are exhibited as “BN2” to the supplemental witness statement of Mr Nipperess, one of the defendant’s witnesses. Leaving annex 4 aside and looking at the travel records of the plaintiff, (exhibited as BN2 to the supplemental witness statement of Mr Nipperess), for the years 1999 and 2000, these show business class travel comprising 2 trips to Europe, 3 to Australia and 8 regionally (to Thailand, Indonesia and Japan) and economy class travel comprising 3 trips to Europe, 3 to Australia and 7 regionally. It should be mentioned that exhibit “BN3” to Mr Nipperess’s supplemental witness statement were direct debit statement summaries for the plaintiff showing tickets used, by whom, by class, on what route and fares that were charged. A comparison between the entries in “BN2” for the year 1999, for example, and the statement summaries for 1999 in “BN3” reveal significant discrepancies which can neither be reconciled nor explained. 68.The judge quantified the loss of travel benefits during the pre-trial period at $30,000 per year. Looking at the plaintiff’s use of free of charge and concessionary travel as disclosed in “BN2” for the years 1999 and 2000, this averaged out at, say, 13 round-trip tickets, half of which were in business class. It is also to be noted that 40% of the travel were to long-haul destinations. Even based on annex 4, in the 2-year period, there had been 4 trips to Europe, 4 to Australia and 8 regionally. There is also the fact that a number of these trips were in business class. In my view, to say that the judge’s award was unwarranted is to shut one’s eyes to reality. Whilst the absence of evidence from a travel agent was a legitimate criticism, it does not necessarily lead to the conclusion that only nominal damages may be awarded. The authorities relied on such as Born Chief Co. (t/a Beijing Restaurant) v Tsai George [1996] 2 HKC 282 and Bonham Carter v Hyde Park Hotel (1948) 64 TLR 178 are distinguishable. In the present case, there are historical data of the plaintiff’s use of her free of charge and concessionary travel benefits from which one could extrapolate the pattern of use (such as frequency, destination and class) for the purposes of quantifying loss. The judge was well aware of the difficulties he faced in quantifying the loss; indeed, he alluded to them in his judgment. Doing the best he could in the circumstances, the judge came up with a figure of $30,000 per year. It simply defies common sense to suggest that tickets for the annual travel undertaken, (be it based on 13 round-trip tickets, 5 of which were to long-haul destinations as per exhibit “BN2” or on 8 round-trip tickets, 4 of which were to long-haul destinations as per annex 4), could be purchased for less than that sum especially as some of the tickets were for business class travel. In my view, the amount awarded can be justified on any basis. If anything, it can be said to be an understatement of the actual loss sustained by the plaintiff. Had the plaintiff approached the matter as suggested by the defendant, she might well have recovered substantially more. 69.Mr Sakhrani’s next point was that there was no loss of all on the basis that the judge found that the plaintiff ought to have taken up the rehabilitation programme in December 2001. If she had done so, it was submitted that she would have been compulsorily retired on medical grounds at the end of the six-month-period which would have entitled her to retain the concessionary travel benefits for a period of 10 years after compulsory retirement. 70.What the judge did in paragraph 51 of his judgment was to notionally assume that the plaintiff would have joined the rehabilitation programme for a period of 6 months and that thereafter she would have been notionally retired by the defendant on medical grounds. But had the plaintiff joined the rehabilitation programme, it could not be said with certainty that she would have been compulsorily retired by the defendant. As is apparent from the evidence of Mr Nipperess, whether a particular employee should be retired compulsorily on medical grounds rested upon a judgment call on the part of the defendant’s medical officers. At the trial for the employee compensation proceedings, the plaintiff’s fitness to fly was an issue that was seriously contested. The defendant’s position was that she was fit to do so and conducted those proceedings on that basis. The judge reached a different conclusion. It would therefore not be right to conclude that the plaintiff would necessarily have been compulsorily retired on medical grounds had she undertaken the rehabilitation programme. 71.For the reasons stated, in my view, the defendant has failed to make out a case for disturbing the judge’s award of $30,000 per year for 2 years as pre-trial loss of travel benefits. 72.As regards the post-trial period, the judge made his award on the basis that the defendant would have remained in employment with the defendant for another 5 years given, inter alia, the high dropout rate of cabin crew and the retirement age of 45. On that basis, she would therefore have sustained a loss of $30,000 for each of those 5 years. He further applied a multiplier of 10 for post-retirement benefits which he assessed to be at $25,000 per annum to reflect the fact that, after retirement, the plaintiff would no longer be entitled to the annual free of charge ticket to any destination of her choice. I would uphold his award of $400,000 in respect of such post-trial loss.
73.The judge awarded the sum of $300,000, noting the number of unknown factors and the substantial discount for accelerated receipt etc. and the fact that the loss was simply not capable of sophisticated calculation in any meaningful way. The defendant’s criticism of the award was that the judge failed to refer to and apply the formula stipulated by the contract and to provide any explanation of how the lump sum was computed. 74.Clause 22A of the plaintiff’s contract provides as follows:
75.It was apparently common ground that the factor to be applied was 2 and the eligible service years was 20.67. According to Mr Sakhrani, the dispute between the parties was the correct figure to be adopted to reflect the final monthly salary. Mr Sakhrani submitted that the correct figure to be used should be the plaintiff’s final month’s salary which was $12,796, resulting in the figure of $528,986.64. From that sum, a 40% discount ought to be applied to reflect acceleration. In addition there should be a deduction made (1) for the sum already paid which Mr Sakhrani was content to revise down to $82,747 from his original figure of $132,084, and (2) for notional MPF which he calculated to be $57,600. According to Mr Sakhrani, the award should have been no more than $181,228 and certainly not $300,000. 76.Ms Eu SC who appeared for the plaintiff approached the matter differently. She submitted that had there not been an accident, the plaintiff would have been able to work till age 45 with a final salary of $20,421. Applying the formula, that would have resulted in a figure of $844,202. Discounting that figure by 40% for acceleration and deducting the sum already received, one is left with $423,774 from which the notional MPF remains to be deducted. 77.The parties did not agree on the amount of the MPF deduction, the difference between the defendant’s figure of $57,600 and the plaintiff’s figure of $48,000 being in the multiplier used. In my view, neither figure is correct. The plaintiff’s (notional) monthly earnings as found by the judge were as follows: $8,000 as at August 2002, $12,000 by October 2003 and $16,000 by October 2004 and thereafter. Using the median earnings for the period from August 2002, the notional MPF to be deducted would be $52,800 and the resultant sum would be $370,974. That is but a fraction of the retirement benefits projections in the amount of $930,000 prepared by the defendant and given to the plaintiff sometime in or about the year 2000. At a minimum, this acts as a useful crosscheck that the judge’s award was not out of line. 78.Subsequent to the hearing, Mr Sakhrani submitted a further authority to the court which is the case of Dall v Choy Ying Wai [1997] 2 HKC 586 which concerned the question whether actuarial evidence was required to show the amount of pension payment to the deceased. The observations of Cheung J (at 589G) to the effect that loss is taken on the basis of what the deceased would have been earning at the date of trial and not an estimate of the rate at retirement have to be read in context. They were based on a passage from Munkman, Damages for Personal Injuries and Death (11th Ed) at para. 10.33 directed at calculations employed to quantify pension loss which the learned author described as “lengthy and complex”. I have to say that I have some difficulty in accepting the proposition that whenever the loss of retirement benefits is to be assessed, the calculation necessarily has to be done by reference to earnings at the trial date. If the passage from Munkman is meant to state that proposition, the underlying reasoning is obscure and, for my part, I would approach the matter differently. 79.In computing the plaintiff’s loss of future earnings, the judge adopted a multiplier of 5 which is not the subject of any appeal. Consistent with that approach, it would be logical for the calculations to be done on the assumption that but for the accident, the plaintiff would have continued working as a cabin attendant for another 5 years from the date of the trial. On that basis, her earnings at the date of retirement would have been $15,580 per month and applying the formula and making the same deductions for acceleration etc. and MPF, one would arrive at a figure of approximately $250,000. In my view, this approach would more fairly reflect the true loss to the plaintiff.
80.At paragraph 56 of his judgment, the judge set out the elements that make up the plaintiff’s emoluments as a cabin attendant:
As the judge noted, those payments were extremely complicated and speculative with many unknown elements which could never be satisfactorily ascertained or predicted. 81.The defendant’s objection under this head appeared to have been directed at the judge’s award of $324,000 as loss of future earnings. This is reinforced by the calculations Mr Sakhrani submitted to the court on the second day of the hearing designed to illustrate the effect on quantum if the “appealed items” were disallowed. It is to be noted that no figure was proffered on the award for pre-trial loss of earnings. 82.The judge’s award for post-trial loss was premised on the plaintiff’s post-trial earnings being $21,000 per month. The defendant challenged that figure. 83.It was common ground that the plaintiff received outport allowances which were paid in cash in local currency or US dollars. They were variable and were not capable of exact quantification. The plaintiff gave evidence to the effect that in the 12 months immediately preceding the accident, she received $32,300 by way of outport allowances and, typically, she would spend $400 out of an allowance of say $2,000 odd. In other words, she would have retained 80% of those allowances. She had not kept any written records of the allowances or of her expenditure. 84.As her employer who paid such allowances, the defendant would have been in a position to know if the amount claimed to have been received was out of line with what had actually been paid to the plaintiff. The first matter to note is that the plaintiff was not challenged on the amount she said she had received. Rather, the defendant’s complaint was the absence of any written record to substantiate the plaintiff’s claim as to the proportion of such allowances kept by her. For cash allowances of this nature, meant to be for meals, laundry and overnight expenses, it may perhaps be a little unfair to criticise the plaintiff for not having kept a written record of what was spent given that, so far as the defendant was concerned, the allowances were non-accountable. 85.At the time of the accident, it was accepted the plaintiff was receiving an average of $3,740 a month by way of allowances excluding outport allowances. In reaching the figure of $5,000 per month as being the difference between flying and not flying in terms of the loss of various allowances including the unspent portion of the outport allowances, the judge appeared to have accepted the plaintiff’s evidence that she did retain a portion of what she was given by way of outport allowances. 86.The defendant was prepared to accept that at the date of trial, the plaintiff’s income would have been $17,372 per month excluding outport allowances computed as follows:
87.I now turn to consider whether the judge’s award of $21,000 can be supported by the evidence. My preliminary observation is that it would be wrong to approach the question of the plaintiff’s loss of future earnings as being capable of precise mathematical computation as the defendant’s approach would tend to suggest. Rather, the matter has to be approached on the basis of whether the award is sustainable having regard to factors that, on the evidence, may properly be taken into account in arriving at the award. I now turn to consider those factors. 88.Had the plaintiff remained a cabin attendant for another 5 years, she would have received annual increments so that in her final year she would have been earning $15,580 as her basic salary. In my view, there has to be an allowance for the annual increment which could be reflected by adopting median earnings for that period. On that basis, her basic salary post-trial would be appreciably more than $12,796 allowed by the defendant. In my view, earnings of $14,000 per month would not have been unreasonable. 89.As noted above, for the year prior to the accident, the allowances actually received by the plaintiff excluding outport allowances averaged $3,740 per month. At the time of the trial, cabin attendants of similar seniority received on average $3,094 per month. Given the variable element in such allowances, it would be fairer to adopt the average of $3,094 and $3,740 as allowances the plaintiff would have received (excluding outport allowances) but for the accident. On that basis, the on duty allowance would be in the region of, say, $3,450 per month. 90.Whilst, as the judge noted, the discretionary bonus and profit sharing were not necessarily payable every year, it was common ground that since the date of the accident till May 2003 the plaintiff had received the following payments by way of bonus/profit sharing:
Profit sharing payments would appear to have been marginally more than the bonus. Further, the defendant accepted that the plaintiff would have received at a minimum an annual bonus. Whilst both payments may not necessarily be made annually, it was not the case that in any 12-month period, a cabin attendant could expect to receive no more than one or other of the payments and not both. It would not have been unreasonable for the judge to have proceeded on the basis that there would be an annual bonus and, on the evidence, it was open to the judge to have taken into account the fact that she would have received a profit sharing payment at intervals less than annually, such as every other year. 91.There remains the question whether any account should be taken of the outport allowances the plaintiff said she retained bearing in mind that these have never been declared for tax purposes. The judge plainly accepted her evidence that she did retain a portion of such allowances. I see no basis for departing from the judge as to this since he had the benefit of seeing and hearing the witness. 92.In broad terms, taking into account the factors previously mentioned, if approximately 50% (rather than the 80% as was the plaintiff’s case) of the outport allowances were retained unspent, one would not be far off the $21,000 the judge found. Whilst the percentage may, on one view, be considered to be a little on the generous side, as the judge noted, the plaintiff’s loss is not capable of precise calculation and has to be looked at in the round. On no view could the judge’s estimate of $21,000 per month as the plaintiff’s post-trial be said to be an entirely erroneous estimate. In the circumstances, I would not myself be minded to disturb the judge’s award in this regard. Conclusion 93.The total amount of damages awarded by the judge was $1,621,424. For the reasons stated above, the judge should have awarded $50,000 less in respect of loss of retirement benefits or $1,571,424. In my view, the differential is not sufficiently significant as to warrant an appeal court to interfere with the judge’s award. I would therefore uphold the judge’s award. Costs 94.I would dismiss the appeal. I would also make an order nisi that costs be to the plaintiff. Hon Yuen JA: 95.I too would dismiss the appeal. I gratefully adopt the narration of the background facts set out in the judgment of the Vice-President and the analysis of Le Pichon JA in paragraphs 53-60 of her judgment and I agree with her conclusion that the Defendant was liable in negligence for having failed to provide a safe system of work. Failure to provide safe equipment 96.I would just wish to add the following reasons for my conclusion that the Defendant was also liable in negligence for having failed to provide suitable equipment, although in any event, the four heads of an employer’s duty to its employees (i.e. providing safe fellow-employees, a safe place of work, safe equipment and a safe system of work) are “part and parcel of one duty”(Clerk and Lindsell on Torts, 18th ed. §7-217). The four heads “lie within, and exemplify, the broader duty of taking reasonable care for the safety of his workmen which rests on every employer” (Winter v Cardiff R.D.C. [1950] 1 All ER 819, 823). 97.In relation to safe equipment, emphasis had been put by the Defendant on the fact that the bar cart was standard aircraft catering equipment. 98.The focus on the design of the bar cart was understandable, given the importance given to it in the pleadings, the witness statements and the evidence at trial. 99.However, in my view, the trial judge was justified in holding that the Defendant’s negligence lay in providing the blue drawer for use inside the bar cart, those two pieces of equipment having been provided by the Defendant for use together by its employees doing the task that the Plaintiff was engaged upon when she was injured. 100.It is clear that the duty of an employer lies not only in providing equipment which is intrinsically safe, but also in taking reasonable care to see that equipment is suitable for the purpose for which it is to be used, whether on its own or in combination with other equipment with which it was intended to be used, so as to avoid the reasonably foreseeable risk of injury to employees. Unbalancing of blue drawer was reasonably foreseeable 101.In my view, the trial judge was justified in finding that the blue drawer - when used freestanding inside the bar cart - was unsuitable for holding the bottles which cabin attendants were required to take out of it. The blue drawer simply rested on its own weight on the aluminium shelf (or the central dividing panel, as it has been called) of the bar cart. It was heavily laden with bottles with a total weight of 13.5 kg. As the trial judge put it, common sense dictates that if the drawer is slid out beyond a certain point, gravitational force would cause it to become unbalanced and fall off the cart. 102.Where that point lies depends, on each occasion, on the extent to which it is pulled out and the weight distribution of the bottles in the drawer (obviously, the fuller or heavier the bottles in the front compared with those at the back, the more easily the drawer would topple). 103.In determining the point at which the drawer would become unbalanced and topple, the “one-third” estimate requires a visual assessment to be made by the individual attendant on each occasion the blue drawer had to be slid out of the bar cart. 104.A “weighting” assessment also had to be done. As Miss Heredia described the required procedure in her witness statement, “when the drawer has been pulled out, keep the forearm in place under the drawer until the drawer is stabilized and then use the other hand to remove the drink from the far end of the drawer”. 105.The risk of an attendant performing these visual and weighting assessments inaccurately was, in my view, reasonably foreseeable, given the pressure of time under which she had to work, the possibility of momentary inattentiveness and the repetitious nature of the task, quite apart from the peculiar difficulties with balance caused by air turbulence. Injury was reasonably foreseeable 106.It was also reasonably foreseeable, and I do not understand it to be challenged, that if the blue drawer fell off the bar cart, injury would be caused to the attendant who would have been either bending her knees or squatting immediately in front of it. 107.The reasonably foreseeable risk of unbalancing the blue drawer when an attendant inaccurately assesses its “one-third” point, or its stabilizing point, and the reasonably foreseeable injury resulting from a toppling drawer, was created simply because of the unsuitability of the drawer (freestanding inside the bar cart) for holding bottles to which attendants needed access quickly. 108.In my view, that was enough for the trial judge to find liability on the part of the Defendant for having failed to provide safe equipment. In considering how the risk could have been reduced and at what cost, the trial judge may have been undertaking the cost/benefit analysis favoured in some jurisdictions (Clerk and Lindsell, §7-185), but that was at most only one of the factors in considering the standard of care expected of a reasonable employer. 109.The first of the alternative measures of reducing risk considered by the trial judge was the provision of flanges at the upper sides of the blue drawer (similar to the flanges at the upper sides of the grey drawers) which would lodge between the ribs at the side panel of the bar cart. The flanges could act as restraints such that the drawer would not be unbalanced unless it was pulled out to an unmistakably excessive extent. 110.I accept that the lack of flanges at the upper sides of the blue drawer was not pleaded specifically as a particular of negligence in the Statement of Claim. However the Plaintiff had pleaded that there was no safety device or mechanism enabling the blue drawer to be fitted inside the bar cart. Paragraph 2(C) pleaded:
Paragraph 3 also pleaded that the accident was caused by the negligence of the Defendant:
111.Thus, whilst it is correct that the focus had been put on the bar cart, a complaint of the lack of some restraining device to fit the freestanding blue drawer to the bar cart was certainly raised, and the Defendant’s counsel did not raise any objection based on the pleadings when the trial judge took up the point of providing flanges at the upper sides of the blue drawer with the Defendant’s service equipment manager Mr Yau at the end of cross-examination. 112.The viability of providing flanges at the upper sides of the blue drawer was put by the trial judge to Mr Yau in terms that were sufficiently clear (p.293-4 of the Transcript):
113.It is sufficiently clear from the above questions and answers that the service equipment manager accepted the viability of providing flanges at the upper sides of the blue drawer. 114.Insofar as it may be suggested that when Mr Yau finished his answers to the trial judge by saying “we can arrange this one to be put at the bottom” he may have misunderstood the trial judge’s questions, it is not clear what he was indicating at the time when he referred to “this one”. In any event, if there was any risk that this showed any misunderstanding, one would have expected the trial judge to have clarified the answer there and then, and in any event the Defendant’s counsel could have clarified the matter in the re-examination that immediately followed. The issue of flanges at the upper sides of the blue drawer was not re-opened in re-examination. Nor was there any application from the Defendant to adduce evidence from other witnesses which might have added to or modified Mr Yau’s evidence on the matter. 115.Accordingly, the trial judge was in my view entitled to find on the evidence that the Defendant was liable in negligence in having failed to provide safe equipment. The blue drawer freestanding inside the bar cart was unsuitable for the purpose for which it was used, in that it was reasonably foreseeable that it would be unbalanced if slid out beyond the point of stability, and that it was reasonably foreseeable that an employee would be injured by the toppling drawer with its heavy contents. 116.Although the Defendant had instructed attendants to perform the visual and weighting assessments (referred to in an earlier part of this judgment) when sliding the drawer out, it remains that an employer has to accept that employees may occasionally be careless, especially when going about repetitious work in haste. The trial judge had recognized that the Plaintiff herself had been careless and had found contributory negligence. The proportion of contributory negligence is a matter primarily for the trial judge and is a matter on which appellate courts rarely intervene. 117.As for the appeal on quantum, I have had the benefit of reading in draft the judgment of Le Pichon JA on this aspect of the appeal and I have nothing useful to add. Hon Rogers VP: 118.The appeal will therefore be dismissed with an order nisi as to costs in favour of the plaintiff.
Ms Audrey Eu SC and Ms Christina Lee, instructed by Messrs K.F. Chan & Co., for the Plaintiff/Respondent Mr Adrian Huggins SC and Mr Ashok Sakhrani, instructed by Messrs Stevenson, Wong & Co., for the Defendant/Appellant Appeal by the Defendant to the Court of Final Appeal. Appeal dismissed. Please refer to FACV1/2006 dated 23 May 2006. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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