Li Lung Hau v. Grand Power Asia Ltd t/a Hon Fook Seafood Restaurant
|
HCPI 617/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 617 OF 2006 ______________________ BETWEEN
______________________ Before : Deputy High Court Judge Carlson in Court Dates of Hearing : 29 and 30 January 2008 Date of Delivery of Judgment : 30 January 2008 ______________________ J U D G M E N T ______________________ Introduction 1.The Plaintiff, Mr Li who was employed by the Defendant as an assistant chef is claiming damages for personal injury as a result of his having sprained his back whilst lifting a quantity of celery placed in a water-filled metal container which he was attempting to put into a floor level refrigerator. 2.The events giving rise to this accident can be shortly described. The Plaintiff is a married man aged 34. He was 31 at the date of the accident. He came to Hong Kong from the Mainland in 1994 where he had been employed as a kitchen worker since 1992. Having arrived here he continued this occupation rising to third assistant chef in the Defendant’s kitchens where he became employed in January 2004. The Defendant’s restaurant is a substantial one with 40 tables which can accommodate up to 500 customers. 3.The kitchen would employ nine persons including the Head Chef/Supervisor. Each employee would be assigned to do specific tasks. The Plaintiff’s job required him to cut up and prepare the vegetables that would be used in the preparation of the various dishes served at the restaurant and he was also assigned to assist in the preparation of hot-pot dishes. In terms of hierarchy he occupied a position somewhere in the middle rank. 4.At the end of the working day, and he was required to work long hours from about 10 am to 11 pm with a two-hour afternoon break, the kitchen staff were required to clean the area of the kitchen where they worked and also to put away foodstuffs, which were unused during the day, into the refrigerators situated in the kitchen so that they were kept fresh and could be used the following day. It was during the course of this latter task that the Plaintiff says he injured his back and to which I must now turn. The Accident 5.The process of cleaning and packing up would start at about 9:30 pm and hopefully would finish by 11 pm by which time the kitchen staff would be allowed to go home, although orders would be accepted by the kitchen up to 11 pm. The events which I need to describe occurred on 8 April 2004 at between 10:30 and 11 pm. I should say at this stage that the Defendant does not accept that the Plaintiff suffered any injury at all given the fact that the Plaintiff, amongst other things, did not report his injury to his superiors until nine days later on 17 April when he sought treatment at Princess Margaret Hospital. 6.It has to be said that the task that the Plaintiff was performing was an inherently uncomplicated and safe one. There are agreed photographs in the evidence which demonstrate what he had to do. The bottom photograph at page 154 shows a table with four shelves. The second shelf has two metal containers placed on it. The relevant one is the one on the left as one looks at the photograph. An identical one was brought to court [see page 156]. It measures 15 cms high, 24 cms across and is 34 cms long. In it was left-over celery. The celery was covered in water which gave the load a combined weight of 10 catties which is about 13 lbs. I arranged for the container that had been brought court to be filled with water in order that I might get some idea of its weight. It was lifted by Mr Leung, the Defendant’s present head chef when he was giving evidence and he was able to confirm that it weighed about 10 catties. The Plaintiff had to lift it a short distance from his workplace shown in paragraph 2 at page 153 and place it into a refrigerator, arrowed in photograph 1 on the same page. His workplace, at photograph 2, is to the right off photograph 1 on page 153. The refrigerator is at floor level shown in photograph 3 at page 154. He says that he had picked up the container and as he bent down to put it into the refrigerator, he felt a sharp pain in his back. He rested for 2 or 3 minutes and then continued working. He described what he was doing as he attempted to put the container into the refrigerator as a combination of squatting down and bending his waist to get into position to slide the container into the refrigerator. The Allegations Against the Defendant 7.It should be remembered that this was a task that the Plaintiff, then a healthy 31 year old, carried out several times each evening six days a week without mishap. He does not complain that the 13 lb weight of this container was in itself too heavy for him. He could lift it without difficulty. Nevertheless, on this particular evening the kitchen was short-staffed. Two people were on leave and the substitute 2nd assistant chef who might have been available and able to help him clear up was working outside the kitchen taking customer’s orders from the waiters. The result was that he felt that he was doing three people’s work by himself and that he felt under pressure of time because he had to have these tasks completed by 11 pm otherwise none of the kitchen staff would be allowed to go home. He did not want to hold them up and thereby let the side down. As a result, he felt obliged to work at a speed that made a perfectly uncomplicated task potentially dangerous. His evidence is that because he was put to it to bend down quickly to put the container away in the refrigerator before moving onto his next task that this caused him to sprain his back. 8.The statement of claim contains what I might call the usual allegations but the essence of his case is as I have just recounted it. It really amounts to an allegation of an unsafe system of work arising from insufficient manpower aggravated by the need, if at all possible, to be finished by 11 pm. He also says that he had not been trained to bend safely to protect his back from this sort of injury. The Defendant’s Case 9.The current head chef, Mr Leung has given evidence. He arrived in May 2004 a month after the Plaintiff went off for nearly a year’s sick leave. His evidence challenges the need for the Plaintiff to have worked as quickly as he says he was. Mr Leung also says that if required other staff, once they had finished their work, could be relied on to help out any colleague who still had his own cleaning and packing up to do. In such circumstances, there would not be any need for the Plaintiff to work at speed. The Defendant has also called its manager, Mr Lo to speak of the attention that the Defendant pays to the safety of its employees. It subscribes to an organisation called the 5S’s which advises, monitors and tests organisations on employee and workplace safety. 5S’s has given the Defendant safety certificates attesting to the fact that it is up to standard in this regard. Conclusions on Liability 10.The Defendant’s primary submission is that when one views the evidence as a whole, the Plaintiff simply could not have suffered the injury that he says he sustained on this occasion. Whilst Mr Joeson Wong, who appears for the Defendant, has referred to some inconsistencies in the Plaintiff’s evidence, including the fact that previously it had been alleged that the accident had occurred at 10:30 pm and not 11 pm, which was his oral evidence and that for the first time in evidence he said that very late in the course of the evening he was required to help with some orders for hot pot which had interrupted his packing up and resulted in him having to work even faster at the time that he was injured I am satisfied that the Plaintiff suffered his injury in the way that he has described. Mr Wong in suggesting otherwise has said that if the Plaintiff had stopped for 2 or 3 minutes after he injured his back this would have been noticed by his colleagues and he also refers to the fact that it is unlikely that he would have been able to go on for nine days after that before getting medical help. The Plaintiff’s explanation for this is that for the first few succeeding days he had been able to cope with the pain and discomfort until he could not put up with it any longer and had to see a doctor. Given the relatively minor nature of the injury, I am satisfied that his explanation for this nine-day delay is perfectly sensible and I accept it. 11.From this I come to the case on its merits. Mr Timmy Yip, for the plaintiff, submits that what had happened that evening was a failure by the Defendant to provide a safe system of work. This distills itself to a combination of two features. Firstly, a culture of having to work as fast as possible to pack up by 11 pm and thereby not delay the departure of one’s colleagues, combined with a failure, on the night, to provide adequate manpower requiring the Plaintiff to, as he puts it, do the work of three men by himself. 12.The timesheets for April are instructive. These are at pages 227 to 235 of the trial bundle. What these show is that on the night, the Defendant was two men short who were on leave and the substitute assistant chef was out of the kitchen at the time helping in taking orders. Mr Leung, the current head chef, says that it is very common for there to be people on leave so that the full complement of nine is not available. The other feature of the time sheets is that they show that the Plaintiff would usually clock on well before his starting time of 10 am (at just after 9:30 am most days) and that he would not clock off until just after 11:15 pm. On 8 April, he in fact finished at 11:32 pm which tends to confirm his evidence that the restaurant was busy that evening. 13.The starting point to all of this is to consider what it is that the Plaintiff was expected to do when he was injured. This was repetitive, routine and essentially safe work. Putting containers into refrigerators is uncomplicated work. He did this daily and on this evening he had already put five or six containers into the refrigerator. The one that he was attempting to put into the refrigerator which weighed 13 lbs was the heaviest of the night although as he has frankly admitted he was well up to lifting and manhandling it into the refrigerator. I find nothing remarkable in this type of task. He says that he bent and squatted in order to lower himself into position, which seems both safe and sensible on his part. 14.The real issue therefore is whether he had to work at a speed which, in the circumstances, turned a safe and simple task into a dangerous one. In this regard, I do not accept the Plaintiff’s evidence that there was inadequate manpower that evening nor that there existed a culture, if I can use that expression, which in some unspoken way required kitchen staff to see to it that everything was done by 11 pm and everyone could then go home. In fact, the timesheets show that everyone did not go home at 11 pm — it was almost always later than that. 15.Whilst Mr Leung was not on duty that night — he was not employed by the Defendant until the following month — I am satisfied that he has provided an accurate account of how things worked in that kitchen at around this time. Nobody was required or expected to work at an unduly fast pace and in any event all could look to their colleagues for help in packing up once their colleagues had finished their work. I therefore find as a fact, contrary to what the Plaintiff says, that he was not required to work so fast that this uncomplicated task became potentially dangerous. Secondly, as to manpower, I also find that the 7 on duty was sufficient for these purposes. Whilst the substitute assistant chef may have been out of the kitchen at that time and may have been out for some lengthy period that did not require the Plaintiff to work at a dangerous and fast speed putting things away. Whilst the substitute chef’s absence may have resulted in the Plaintiff not being able to count on him for help, others were there and could have helped out if need be. Although I am satisfied that the Plaintiff was a conscientious worker, he did not have to and did not carry out his tasks with undue haste. 16.I am afraid that what happened to him on that night was one of those unfortunate accidents that befall individuals from time to time for which nobody is to blame — and certainly not the Defendants nor the Plaintiff himself. The system of work employed by the Defendant was a perfectly safe one. They had put into place a routine starting at about 9:30 pm, as the orders into the kitchen became reduced, to clean the kitchen and put away perishable food into refrigerators ready for use the next day. It seems to me that this was the practice of good hygiene in a large restaurant such as this one. Nobody was expected to rush in doing this and the staff available that night was entirely adequate for this purpose. 17.This being my view of the evidence, the Plaintiff has failed to make out a case of negligence by the Defendant nor one of failing to provide him with a safe system of work — in fact the contrary was the case. The system was a perfectly safe one. 18.In these circumstances, the claim must stand dismissed and therefore there will be judgment for the Defendant. Quantum 19.For the sake of completeness, I propose to give an account of what damages I would have awarded the Plaintiff had he succeeded. The parties’ medical experts are in serious disagreement on a number of aspects notwithstanding which the Master has ordered that their reports should go in without having the two doctors called. The pre-trial loss of earnings is put by the Plaintiff at $281,357 based on 10⅔ months of sick leave and 34⅔ months of unemployment to date. The Defendant says it should be $33,531 based on its medical expert saying that only three months of sick leave is justified. Future loss of earnings is claimed at $785,736 on the basis that the Plaintiff’s doctor says that he will never go back to his previous employment whereas the Defendant’s expert says that he could return to his old job after only three months resulting in no future loss. Given this disparity in medical opinion, it is difficult to see how the Master felt able to let these reports stand together in the trial unchallenged. 20.I am left with trying to do my best on this conflicting material without the benefit of seeing the doctors challenged in cross-examination. Pain, Suffering and Loss of Amenity 21.This is a soft tissue injury. I would have awarded $125,000. Special Damages 22.I would have awarded $12,100 based on the receipts produced for $7,100 and an additional $5,000 for tonic food. Pre-trial Loss of Earnings 23.On the present evidence, I would have awarded $119,156.82 based on the medical certificates for 10⅔ months although there is much force in Dr Tsoi’s view that three months would have been ample for this injury. Future Loss of Earnings 24.It seems to me that on paper Dr Tsoi’s views that he could have returned to work, which he did, is to be preferred. I would not have awarded anything for future loss of earnings and no pre-trial loss after the expiry of his sick leave nor anything for loss of earning capacity. MPF 25.This would have come in at 5% on the award for pre-trial loss of earnings.
Timmy Yip, instructed by Messrs Keith Lam, Lau & Chan, for the Plaintiff Joeson Wong, instructed by Messrs Day & Chan, for the Defendant |