Chan Wai Ming v. Tai Lee Café & Cake Shop

DCPI 1039 /2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1039 OF 2006

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BETWEEN

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Coram:  Deputy District Judge S. T. Poon in Court

Date of Hearing:  30^th April 2007 & 2^nd May 2007

Date of Handing Down Judgment:  7^th May 2007

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JUDGMENT

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Background

1.The Plaintiff was a chef working at the Defendant’s restaurant in Tuen Mun.  He alleged that in the morning on 15/2/2004, when he was pouring some boiled soup from a pot to a plastic container by lifting up one side of the pot with his single left hand, the bottom of the pot slipped and he sprained his left wrist in trying to prevent the heavy pot from falling onto the floor.  

2.The Plaintiff said the accident happened due to the negligence of the Defendant as an employer and in breach of statutory duties. 

3.The Defendant denied the alleged accident ever happened.  It further said that the Plaintiff was a very experience chef that required no guidance from the Defendant in performing such a simple task.  In any event, there were ladles available for the Plaintiff to use to transfer the soup but the Plaintiff chose not to use it.

4.The Defendant also said that any injury suffered by the Plaintiff on his left hand was due to his own illness and has nothing to do with the alleged accident.

5.Mr. Gidwani, counsel for the Defendant, in his final submission focused on the point that the Plaintiff had given inconsistent evidence as to when and how the alleged accident happened.  He asked the court to disbelieve the Plaintiff and dismiss his claim accordingly.

The alleged incident

6.The Plaintiff had worked for the Defendant for about 3 years before the accident.  One part of his duties was to transfer the boiled soup from the pot on the stove to a plastic container every morning.   In normal circumstances, he would use a metal ladle to do the transfer.

7.The Plaintiff gave evidence that, on the particular morning at around 10 am, as the said ladle usually used by him was broken, he attempted to transfer the boiled soup by directly pouring it from the pot to the plastic container.  The pot of boiled soup was placed on top of a counter table.  He rested the bottom of the pot on an edge of 2 to 3 inches width and lifted one side of the pot up with his left hand to pour the soup to the plastic container underneath.  As there was no insulating glove provided, he used a cotton towel to insulate his left hand against the heat of the pot.  Suddenly, the pot slipped at its bottom.  In order to prevent the pot from falling onto the ground such that the soup would spill, he gripped the pot tight and as a result he sprained his wrist.

8.The pot in question measured 18 inches in height and 16 inches in diameter.  The weight of the pot of boiled soup was around 50 Ibs.

9.Notwithstanding the injury, the Plaintiff continued working for the whole day and only went to the Accident & Emergency Department of Tuen Mun Hospital (“TMH”) to seek consultation after 11 pm.  He was given sick leaves from 15to 18/2/2004.

10.As submitted by Mr. Gidwani, the above account was inconsistent with what was shown on the hospital records.  According to the computer printout affixed to the attendance notes of the A & E Department, the Plaintiff was admitted at 00:19 of 15/2/2004.  This would be a time the alleged accident had not yet happened according to the Plaintiff.  Moreover, it was recorded on the said attendance notes that the incident date was 14/2/2004 at around 23:15.  On this point Mr. Gidwani had repeatedly asked the Plaintiff in cross-examination to confirm the actual time of the alleged accident but the Plaintiff maintained once and again that it was happened in the morning on 15/2/2004. 

11.Apart from the above inconsistencies, the Plaintiff had also given a different account as to how the alleged accident happened.  It was pleaded in the Statement of Claim that “Due to the unsecured cotton towel, the Plaintiff’s grip on the pot suddenly slackened, the pot fell onto the floor.  In the course of gripping, the Plaintiff sprained his left wrist and thereby sustained personal injury”.  The Plaintiff said in court that the pot did not fall and in fact he was injured because he wanted to prevent the pot from falling.

12.The Plaintiff did not offer any explanation on the above inconsistencies.

13.Mr. Cheung, the person-in-charge of the Defendant’s kitchen at the material times, gave evidence for the Plaintiff.  However, when asked about the time when the alleged accident happened he said he was given to understand from the Plaintiff that it was not happened in the morning.

The ladle

14.The Plaintiff’s case is that there were only 2 similar ladles for use in the Defendant’s kitchen and one of them was used by his colleague for other purposes.  At the time of the accident, the one normally used by the Plaintiff was broken and the other one was in use by his colleague.

15.According to Mr. Cheung, he had informed the Defendant (Mr. Lee) about the broken ladle a few days before the accident but the Defendant did not provide another ladle for replacement.

16.When queried by this court why he did not borrow the ladle from his colleague to transfer the soup as it would just take 1.5 minutes to finish the job according to the Plaintiff, he replied that the ladle was used to contain the deep fried food and cannot be spared for his use.

17.It is worth noting that the Plaintiff did not mention this specific use of his colleague’s ladle until he faced the query of this court.  Another point to note is that, when Mr. Cheung gave evidence in relation to the ladle, without any probing from counsel Mr. Cheung volunteered out of the blue that one of the functions of the ladle was to contain deep fried food.

18.There were photographs of the subject ladle shown to the court for reference.  There was a dispute between parties as to which was the correct subject ladle but I should say the photographs showed nothing but a usual metal ladle with a handle.  There was nothing special about the ladles shown to make them specifically more suitable for transferring boiled soup from the pot.

Discussions

19.There are quite a number of alleged breaches of duties on the part of the Defendant as particularized in the State of Claim.  However, most of the alleged breaches could not stand on their own feet in view of the latest version of the Plaintiff of the alleged accident.  Say for example, the failure to provide insulating gloves.

20.Miss Lau, counsel for the Plaintiff, submitted that proper warning should be given to the Plaintiff not to pour soup this way.  I cannot see the merit of this in that given the usual method adopted to transfer the soup by ladle it cannot be reasonably foreseeable that the Plaintiff would adopt this dangerous course.  Not to mention the Plaintiff was a very experienced chef in the profession for more than 9 years, it would be commonsense that it is dangerous to try to tilt a pot of boiling soup as heavy as the present one to pour the soup to another container.

21.In relation to causing or allowing the Plaintiff to work after the injury despite sick leaves were granted, there is simply no medical evidence to suggest that this could be a cause or contributing factor to the Plaintiff’s injury. 

22.In any event, I do not find the evidence of the Plaintiff reliable.  Quite apart from the fact that the accident if happened could not have happened on 15/2/2004, it is not probable that any accident had happened in the morning on 14 or 15/2/2004.

23.The time recorded by the attending officer of the A & E Department of the accident was 23:15.  Without any evidence suggesting the contrary, this relevant time could only be provided by the Plaintiff.  Should the Plaintiff tell the relevant officer the time of the accident being or around 10 am, there is no reason why the said officer would mistakenly enter an incorrect time as 23:15.

24.Miss Lau in re-examining the Plaintiff suggested that the mistake might have caused by a confusion of the time when the Plaintiff arrived at the hospital.  However, the admission time was stated clearly as 00:19 and there was nothing to suggest that the said officer had asked when the Plaintiff arrived at the hospital.

25.Moreover, it is improbable that the Plaintiff would choose to wait until off-duty to attend the A & E Department if his wrist was injured in the morning.  It is the evidence of the Plaintiff that his work relied very much on his left hand to hold the wok when cooking.  There is no reason why he should tolerate the probable pain that he would suffer in continuing to work on that day.

26.On the other hand, the evidence of Mr. Cheung corroborated the incident time recorded on the attendance notes.  Should any accident happen on the Plaintiff at all, it would be more probable that it happened in the evening of 14/2/04 rather than in the morning of 15/2/04.

27.If the accident happened in the evening, it would be unlikely that it happened in the way as described by the Plaintiff in that the transfer of soup was to be done in the morning rather than in the evening.

28.Furthermore, the account given by the Plaintiff in court of the accident and the one pleaded in the Statement of Claim involved totally different causes.  They are simply irreconcilable.       

29.Another factor that undermined the reliability of the Plaintiff’s evidence is that he did not mention about his pre-existing illness (non-specific synovitis of multiple joints) on his right hand to his medical expert Dr. Kong.  Dr. Kong in his supplemental medical report wrote “[the Plaintiff] was asked specifically about his past health but he NEVER (emphasis by Dr. Kong) mentioned that he was admitted repeatedly for his right index finger swelling and pain.  He only mentioned that he is an asthmatic on inhalation therapy on a regular treatment basis.” 

30.It was not until after the discovery of his medical records that the Defendant’s medical expert Dr. Chun realized that the Plaintiff had been suffering from the illness. As disclosed from the medical records, the Plaintiff had been attending Tuen Mun Hospital for treatment of this illness as early as on 11/10/03.  According to the attendance notes on that day, the Plaintiff was diagnosed with left index finger infection.

31.After considering the medical records, Dr. Chun came to a conclusion that the injury on the Plaintiff’s left hand is likely a result of infection of the illness rather than the alleged accident.

32.The Plaintiff case was that after the alleged accident he continued to work for the Defendant without taking sick leave and until September 2004 the conditions of his left wrist deteriorated to the extent that he could not work.  However, on his visit to the Department of Orthopaedics & Traumatology clinic (“DOT”) of Tuen Mun Hospital on 3/3/04, he did not mention anything about his left wrist injury to the treating doctor.

Conclusions

33.Taking into account the above factors, I conclude that the Plaintiff’s evidence is unreliable and I am not satisfied that an accident had happened on the Plaintiff at the relevant time as described by him. 

34.Besides, I am of the view that the Defendant cannot be in breach of any duty in respect of the Plaintiff’s own choice to adopt an obviously dangerous method to transfer the boiled soup. The Plaintiff did not act upon the instruction of the Defendant and there was no suggestion that the Defendant was aware of the Plaintiff adopting this method.  Transferring soup was a simple task that the Plaintiff as a chef of such experience required no guidance from the Defendant. 

35.There was at least one ladle or utensil in the kitchen suitable for use by the Plaintiff to transfer soup at the time.  I do not believe that the other similar ladle used by the colleague could not be spared for the Plaintiff’s use for merely 1.5 minutes.  I also do not believe that the Plaintiff could not find a single carrier in the kitchen capable of transferring the soup without danger.   

36.Furthermore, even if an accident did happen as described, I am not satisfied that the injury as a result caused any permanent disability to the Plaintiff’s left hand.  I accept the opinion of Dr. Chun that any injury the Plaintiff suffered from the accident was minor and most likely recovered by 3/3/2004.  It was only on 13/5/2004 that the treating doctor of the DOT started to record left wrist pain and it was part and parcel of the non-specific chronic synovitis, due to gouty arthritis or other unknown factors but was most unlikely related to the claimed injury.

37.I note that it is the opinion of Dr. Kong that the alleged accident has likely triggered or aggravated the non-specific synovitis that the Plaintiff suffered.  However, Dr. Kong did not explain how he came to this opinion and why left wrist pain was not recorded on the attendance notes of the DOT on 3/3/04.  On this issue, I prefer the opinion of Dr. Chun.

38.In the premises, the Plaintiff’s claims shall be dismissed.

Quantum

39.Even if the Plaintiff succeeded on liability, the damages to be awarded would be minimal.  I have found in the above paragraphs that any injury suffered by the Plaintiff as a result of the alleged accident was fully recovered by 3/3/04 and caused no permanent disability.

40.As the pain suffered by the Plaintiff would not be great and otherwise he would not be able to continue performing his duty the whole day, the award on Pain, Suffering and Lost of Amenities should be a small sum of HK$10,000 only.

41.There is evidence from Mr. Cheung and Mr. Lee that the Plaintiff had actually received the payment of wages during the sick leave period.  I do not think the Plaintiff had suffered from any damages on lost of earnings.

42.As there is no permanent disability caused, there shall be no damages on loss of earning capacity.

43.No future treatment is necessary and there shall be no award for future medical expenses.

44.For special damages, I am of the view that the figures suggested by the Defendant in its Answer is reasonable in view of the minor nature of the injury.  It is assessed at HK$900.

Order

45.The Plaintiff’s claims be dismissed.

46.I see no reason why costs should not follow the event.  I make a cost order nisi that costs of this action be to the Defendant to be taxed if not agreed, with certificate for counsel.  This order nisi shall become absolute 14 days after the handing down of this judgment.

Miss Lorinda Lau instructed by Messrs Kenneth W. Leung & Co. for the Plaintiff.

Mr. Victor Gidwani instructed by Messrs Winnie Leung & Co. for the Defendant.