Chung Kam Chuen v. Lisboa Bakeries Ltd

HCPI 1270/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1270 OF 2003

____________

BETWEEN

____________

Coram: Deputy High Court Judge Carlson in Court

Date of Hearing: 17 and 18 March 2005

Date of Judgment (Handed Down): 24 March 2005

______________

J U D G M E N T

______________

Introduction

1.This is an action for damages for personal injury brought by the Plaintiff as a result of a back injury sustained by him on 25 November 2000 in the course of his employment as a senior cook in the kitchens of the Macau Restaurant in Tsim Sha Tsui, owned and operated by the Defendant.

2.The essential facts are uncomplicated and are not disputed by either side.  This is largely because of a judgment in the District Court by His Honour Judge Wesley Wong dated 27 November 2003 given on the Plaintiff’s application for Employees Compensation in which he found that the accident occurred in the circumstances alleged by the Plaintiff.  The parties are agreed that this finding by the judge raises an issue estoppel which binds both parties and which therefore also means that I am required to proceed on the factual basis found by the judge.  I should make clear that the District Court’s finding only extends to how the accident occurred and not to whether those circumstances amount to negligence or otherwise on the part of the Defendant.  The other aspect of Judge Wong’s judgment which his said to give rise to an estoppel is his finding that “…. it is not because of his (the Plaintiff’s) injuries that he could not resume his job as a cook and that he had to look for other jobs.”  This will relate to the loss of earnings claim which will need to be considered in due course.  Suffice it to observe at this stage that the Defendant relies on this finding as determinative of the loss of earnings claim after the end of his period of sick leave.  Nevertheless, the Plaintiff submits that properly understood this finding does not cover the issues as to loss of earnings raised in this action and therefore does not create an estoppel.  I will be required to decide this when I come to that aspect of the case.

The accident

3.The Plaintiff is now 38.  He was 33 at the time of the accident.  After leaving school he had a variety of employments of short duration but in 1989, then aged 22, he became an apprentice cook in a Japanese restaurant and worked there until he qualified as a cook in 1993.  Thereafter he worked at various well-known establishments such as Planet Hollywood, the Regal Hotel and Jimmy’s Sports Bar and Grill.  He joined the Macau Restaurant as a senior cook on 18 December 1998.  His responsibility was to prepare the Portuguese/Macanese dishes.  The restaurant also offers chinese food which was prepared by two other chefs’ who specialised in chinese cuisine.  The Plaintiff worked the middle shift from 9 am to 9 pm or from 10 am to midnight as required, but in 2000 he transferred to the morning shift which runs from 7 am to 5 pm.  He had a 6 day week and paid overtime and annual bonus.  His basic salary was $13,000 a month.

4.It is right to say that the morning shift required the Plaintiff to get things going in the kitchen and prepare everything for lunch which would start being served from about 11.30 am.  An important part of the Plaintiff’s case is that he was required to work at a brisk pace having regard to the early lunch service.  He complains that this was made more difficult by virtue of the fact that he was not provided with sufficient assistance in terms of manpower to carry out his duties.  At page 147 of the trial bundle he has set out his work schedule together with the number of persons in the kitchen at any given time.

5.What follows is not in dispute.  He would arrive a little before 7 am each morning and would start by igniting the gas stoves.  The main task after that would be to prepare the tomato/vegetable soup and various sauces such as the curry sauce, a white sauce and a soy-based sauce.  These would be cooked in large pots shown at page 180 of the trial bundle.  Once the soup (in this case) was prepared it would have to be transferred from the large cooking pot into smaller containers like the one shown next to the cooking pot in the lower photograph at page 180.  In order to carry out this “transfer” the Defendant provided what has been referred to as a ladle (again shown in the lower photo at page 180).  In fact it is not a ladle proper but a smaller saucepan which is perfectly adequate for the task, if anything even more suitable then a ladle because of its larger capacity which therefore would mean that more soup could be transferred each time.  Once the soup or sauce was transferred into the smaller metal containers it would be kept warm underneath the cooking stoves until such time as it was required and in the case of soup poured into a soup bowl to be served to any customer who had ordered soup.  All this would appear to be perfectly straightforward and unremarkable until one hears the method employed by the Plaintiff in carrying out the transfer.  The method designated by the Defendant for doing this was to place the containers next to the cooking pot (as in the photograph) and ladle it into the containers.  Each big pot would fill 4 to 6 small containers.  The surface of the cooking range would be fairly crowded so that not many containers could be placed next to the cooking pot.  It would not be possible to place all 4, 5 or 6 small containers that would be required at the same time.  The Plaintiff’s case is that he devised his own method to do these transfers which had the great merit, as he saw it, of being appreciably faster than the Defendant’s method.

6.Before I describe it I should say that I asked that a big pot, a metal container and a ladle be brought to court, which they were.  All three are identical to those shown in the photograph and agreed to be so by the Plaintiff.  I also asked that the big pot be filled with water up to the mark shown in the top photograph at page 180, which the Plaintiff says is where the pot would be filled to once the soup and its ingredients of water, vegetables and cream went into the pot.  This piping hot mixture would have to be transferred into the smaller serving containers.

7.It is absolutely fundamental to the resolution of this case to understand that the big pot filled with its hot contents is very heavy indeed.  That is why I required that it be filled with liquid.  The water filled big pot was brought to a room next to the court and I tried to lift it.  I could barely move it because it was so heavy.  This was also the experience of both counsel.  We could not weigh it.  The Plaintiff says it was over 100 lbs – of that there was no doubt and, it could easily have been 10% more than that.  I then asked that it be lifted onto a table in the room.  It took two men, each holding a handle, to do that.  I then asked the Plaintiff to say whether the height of the table was the same as the cooking range.  He suggested that the range might have been higher.  For reasons which will become clear in a moment, I attempted to lift the pot from the table.  As must be obvious lifting an object from that position affords less purchase with the result that, any attempt to do so was quickly abandoned.  Both counsel agreed with this rather obvious proposition.

8.Now to what the Plaintiff was doing when he injured his back.  He says that given the pressure of time to get everything ready for lunch by 11 am, compounded by a lack of sufficient assistants, he was obliged to operate at speed.  He described that the best way to do these transfers in the circumstances which the Defendant’s requirements imposed on him was to place the requisite number of serving containers on the ground and then lift the big pot off the cooking range and manually pour its contents into each container in turn until what was in the big pot had been used up.  In court I asked the Plaintiff to demonstrate this with, on this occasion, an empty big pot.  Knowing how heavy the big pot would have been I was anxious to understand the technique that he would employ.  He showed me.  A smaller container was placed on the floor and he then lifted the big pot from the clerk’s table and bending his knees he dropped his arms holding the container from its handles.  To steady himself and to distribute the weight, he placed his left elbow onto his left thigh (above the bent knees) and then proceeded with a pouring motion to pretend to fill the small container on the ground.  He says this method would be considerably quicker, particularly as it had to be repeated on a number of occasions in the course of the morning.

9.As to relative speed between the ‘approved’ ladle method and the Plaintiff’s ‘pouring’ method, Mr Cheung, the Defendant’s head cook who gave evidence, says that he timed the ladle method using water rather than hot soup and that it took him 12 seconds to ladle a big potful of water into the required number of smaller serving containers.  Making allowances for the fact that the hot soup may slow one up he thought this would have taken 15 seconds to do with soup.

10.The accident occurred at about 8 am on 25 November 2000.  The soup was ready for pouring into the smaller serving containers which had been placed on the floor.  The Plaintiff lifted the big pot clear of the cooking range and when he turned about 90° he says he sprained his back in the process which became very painful.  This is what Judge Wesley Wong found and I accept this evidence as to how the Plaintiff’s injury occurred.  This was seen by his assistant Yiu Wan Cheung.  Presumably, the Plaintiff was able to put the pot back onto the cooking range and the head cook Mr Cheung was informed.  He was told to get medical help, but despite it all he was able to work through most of his shift before attending Queen Elizabeth Hospital.

The alleged negligence

11.The essence of the case against the Defendant is that it employed an unsafe system of work by requiring the Plaintiff to do so much preparation and cooking, in a limited period of time and with insufficient help, thereby obliging him into resort to short cuts of which the pouring method, as I have described it, is one with the result that it was entirely foreseeable that he would put his back out in the way that he says he did.

12.The Defendant replies by saying that the system of ‘ladling’ that it had ordained as the approved method was perfectly sensible and safe.  If it took longer it would not have been materially longer and certainly would have left the Plaintiff with enough time to do his tasks by 11 am.  As to help, he was provided with an assistant who arrived later than he did and as the peak period between 10 and 11 am approached more staff were slated to come on duty.

13.The Defendant’s case is that whenever the chief cook, Mr Cheung saw the Plaintiff pouring the soup or sauces he would tell him to stop.  This would happen quite often and he would point this out to the Plaintiff but it would appear that he would then revert to his pouring method on the basis that it was quicker and necessary in order to get the food ready by 11 am.  He says that he would have to work flat out and would often not have time for his own lunch until 4 pm when things had quietened down.  As to that Mr Cheung says that the staff were able to take their lunch breaks at a convenient time and usually by about 11 am.  The Plaintiff had also complained that the shortage of manpower was made worse by the consistently late arrival of the two chinese cuisine chefs’, certainly one of them was a particular offender, and this created even more work for him.  He drew this to Mr Cheung’s attention.  Mr Cheung says that there is no substance in this complaint.  He checked the punch cards which recorded employees arrival times and he found that if there was lateness, which was not all that frequent, it was only by 5 or 10 minutes which would not have affected the kitchen’s efficiency overall.

14.The other matter which has assumed importance in the Plaintiff’s case is that there was no sufficient safety regime nor training programme for the kitchen employees.  The answer to this, from Mr Cheung, is that the Labour Department’s notices were posted and that training was given as necessary.  In this case very little would have been required of such an experienced cook as the Plaintiff who had been a chef for 11 years at the time that he was injured.  Mr Lam, who appears for the Plaintiff, submits that more should have been done to get the Plaintiff to desist from his pouring method and that it is often the experienced workman who might have developed bad habits or may have become complacent who needs to be brought up to the mark.

Liability

15.I am satisfied on all the evidence that the Defendant must be acquitted of any negligence in this matter.  This was an uncomplicated routine for the Plaintiff to follow.  I have no doubt that he needed to work with a sense of urgency to get his food out on time but that the system of work put into place by the Defendant was a perfectly good one including the manpower assistance that was provided in terms of Mr Yiu and the other staff who would have arrived and been available to him closer to the peak time.  Nevertheless, the Plaintiff got it into his head that he could do the transfer of the soups and sauces more efficiently by pouring rather than ladling.  He had been told not to on many occasions but he continued to do so.  In such circumstances, short of sacking him or moving him to other duties, I cannot see what else the Defendant could have done.  The Plaintiff decided to employ this highly risky method by lifting a very heavy pot and then pouring its contents into the smaller container on the floor.  So heavy would the big pot have been than it surprises me that the Plaintiff would have been able to accomplish this task without mishap – which he did for two years until he injured himself on this particular day.  I am entirely satisfied that this was an accident or, more accurately put, an injury that was almost bound to happen given time.  Whilst it may appear unkind to an injured man, I have to say that the method that he decided to employ was extremely foolhardy for which no possible blame can attach to the Defendant.  Their system of work was perfectly safe and adequate to the tasks and the constraints of time that the Plaintiff was faced with.  Accordingly, the claim must stand dismissed and there must be judgment to the Defendant.

Contributory Negligence

16.In the event that I am held to have been mistaken in holding that the Defendant is not negligent I would have found the Plaintiff 100% contributorily negligent for his injury.  This was a ‘frolic’ of his own, contrary to a much repeated instruction to ladle and not to pour.  There must come a point, and it has been reached in this case, where an experienced workman must take the consequences of his own foolhardiness.

Damages

17.I will briefly indicate what my award would have been had I found the Defendant to have been negligent.  The quantum is on the basis of 100% liability.

Pain, Suffering and Loss of Amenity

18.This can properly be described as a sprain injury.  After resting for 15 minutes he was able to continue to work, effectively until the end of his shift.  Doctor Tsoi, the Defendant’s medical expert, says that if his back had been “…acutely sprained, the patient will not be able to continue heavy manual of work for several more hours immediately after the accident.”  Miss Alice Tsang, for the Defendant, relies on this observation as evidence which indicates an injury of mild severity.  The other feature is that the Plaintiff suffered from a pre-existing disc-prolapse due to pre-accident degeneration.  The Plaintiff says that this was due to a sneeze at work in 1989/9 which put his back out and that he had to be hospitalised for 2 or 3 days.  He was subsequently followed up for this and his UCH record dated 2 November 1999 says: “Low back pain for 13 years.  Lifting injury, admitted to UCH for 3 days … worse last 3-4 years.”  Miss Tsang says there is no reference there to a sneeze but to a lifting injury and it is remarkable that the attending doctor would have written “lifting injury” when it was something more memorable, like a sneeze, that caused the injury.  At all events both experts, Doctor Au and Doctor Tsoi, agree that there has been this long history of back pain.  In my judgment the current on an off back pain would probably have troubled with the Plaintiff even without this incident which has not added to his condition by very much.  I would have awarded $150,000 under this head.

Past and Future Loss of Earnings

19.The Plaintiff says that he is now only capable of working part time and earn $3,500 a month.  In the Employees Compensation claim, in the District Court, he based his loss on an earning capacity of $5,000 – so this has gone down since then?  As to pre-trial losses these divide themselves between loss during sick leave and after the expiry of sick leave.  His pre-accident income, taking overtime and bonuses into account, is agreed at $14,166.67 per month.  Sick leave was certificated from 25 November 2000 to 16 April 2002, a period of 16.7 months.  He would have earned $236,583.39 and was paid $173,864.93 by the Defendant.  His net entitlement would therefore have been $62,718.46.  I then come to the expiry of the sick leave and whether he has any claimable losses after that.  This gives rise to an important question of whether the Plaintiff is faced with a conclusive issue estoppel having regard to Judge Wong’s conclusion that; “… it is not because of his injuries that he could not resume his job as a cook and that he had to look for other jobs”. [page 329 of the Trial Bundle].  Miss Tsang submits that Judge Wong has held that he could work as a chef once his sick leave was over and that I should not enquire any further into the matter.  Mr Lam submits that the judge was referring to whether the Hong Kong Paper Mills formula should be applied to the question of his loss of earning capacity, which is different to what I have to do.  I have attended to the judgment of Judge Wong in full and in particular to the complete passage where he has made the reference that I have just cited.  I do not consider that an estoppel can arise.  I agree with Mr Lam that the learned judge’s remarks must be put into context and I don’t understand him as saying that the Plaintiff could return as a cook at full capacity.  In this part of his judgment he was referring to a specific and peculiar, that is to say peculiar to the Employee Compensation jurisdiction, head of assessment.  Consequently, I ought to deal with future loss of earnings after the expiry of his sick leave.  This of course will be an assessment of the extent to which this injury has caused or contributed to his present disability in circumstances where he has had long standing back problems.  In this regard the medical evidence is of paramount importance.  Doctor Au, his medical expert, says that “…with the present degree of disability the Plaintiff’s previous job as a full-time western cook who needs to lift heavy objects frequently is too strenuous for him.” [page 210].  Doctor Tsoi says he is “… able to resume his pre-injury work with a mild reduction in capacity.  Duties requiring heavy lifting should be exempted … ” [page 236].  Miss Tsang is correct to say that neither doctor has said that he cannot do a job which requires prolonged standing.  Examination of both lower limbs was normal.  The way Doctor Tsoi put it on 15 August 2003 [page 246] is that; “…apart from local tenderness over the lumbar region, no other abnormality was detected … the back enjoyed full range of motion and no associated neurological deficit of lower limbs was detected.”  Since then he has been seen again by the experts and his condition has improved [page 209].

20.The Plaintiff says he can only work on a restricted basis – really as a weekend chef doing more junior work such as preparation of food, rather than as a front-line chef.  He has been working at the Sai Kung annex of the Hong Kong Yacht Club on this basis and he says that this is all that he can manage.  The result is a very substantial loss of earnings claim based on a multiplier/multiplicand calculation which comes to $1.79 million, all resulting from a relatively minor back sprain.  The adopted multiplier is 14 years.  There is a difficulty about this.  The Plaintiff is simply not doing his best.  He is a person beset by a number of other difficulties which the medical records have highlighted.  He has psychological problems which in my view impair his willingness to get on with his life.  In the medical bundle [13-15] there are references to “multiple somatic complaints” and to “multiple doctor shopping”.  He has not had it put to him in cross-examination that he is malingering and so that is not a finding that I am disposed to make, nevertheless, I am persuaded on all the medical evidence that he can work as a full-time chef provided he does not lift heavy weights.  I prefer the evidence of Doctor Tsoi in this regard that he could return to work on a full time basis.  Heavy weights should be avoided and it is not suggested that he will be required to lift these in a western kitchen on a continuous basis.  Ordinary pots and pans are well within his capacity.  I also do not consider that Mr Lam’s multiplier/multiplicand approach is apt to the Plaintiff’s circumstances.  Both doctors speak of a loss of earning capacity and Judge Wong found this to be 3%.  I am going to recognize a future loss of earnings claim which I will compensate him for on a global basis, really doing my best on all the evidence.  I cannot begin to arrive at a mathematically precise amount, just as much as the proposed multiplier/multiplicand method could not begin to do justice to both parties in this action.  This is an experienced cook who should by now be earning full-time.  I would have recognized a future loss of earnings claim, to include a sum for loss of earning capacity and loss of MPF benefits by awarding the global amount of $550,000.00.

Miscellaneous

21.The amount for future medical treatment is agreed at $4,320.00 and special damages are agreed at $10,260.00.

The total

22.The claim would therefore have been worth $777,298.46 and therefore should have been heard in the District Court with costs on that court’s scale.

Costs

23.Where the Plaintiff has failed in the action the Defendant must have an order nisi that the costs should be to it to be taxed if not agreed (on the High Court scale of course) on a party and party basis.  If the Plaintiff is on legal aid there must also be a legal aid taxation of his costs.

Mr Paul Lam, instructed by Messrs Or, Ng & Chan (D.L.A.), for the Plaintiff

Ms Alice Tsang, instructed by Messrs Day & Chan, for the Defendant