Law Shu Ming v. Tung Wah Group of Hospitals
Read the full judgment text of HCPI 630/2008 on BabelCite. This High Court CFI judgment was delivered on 26 August 2009.
1. The plaintiff, Mr Law Shu Ming, was a cook employed by the defendant, the Tung Wah Group of Hospitals. Whilst in the course of his employment on 21 November 2005, he sustained injuries to his right middle finger and back when he was disposing of a plastic bag of rubbish in a cardboard box by depositing the bag and the box in a rubbish skip. For these injuries, he claims damages from the defendant.
Cited by 3 cases · Cites 4 cases
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HCPI 630/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 630 OF 2008 ------------------------- BETWEEN
------------------------- Before : Recorder Joseph P. Fok SC in Court Dates of Hearing : 25, 26 and 29 June 2009 Date of Judgment : 26 August 2009 ----------------------- J U D G M E N T ----------------------- Introduction 1.The plaintiff, Mr Law Shu Ming, was a cook employed by the defendant, the Tung Wah Group of Hospitals. Whilst in the course of his employment on 21 November 2005, he sustained injuries to his right middle finger and back when he was disposing of a plastic bag of rubbish in a cardboard box by depositing the bag and the box in a rubbish skip. For these injuries, he claims damages from the defendant. Background facts 2.The plaintiff was born on 4 December 1954 and he was therefore 50 years old at the time of the accident and 54 as at the time of the trial of this action. 3.At the time of the accident, the plaintiff was employed by the defendant as a chef at the Jockey Club Care & Attention Home for the Elderly (“the Home”), which was under the management of the defendant. He had been employed at the Home in that capacity since 1995. 4.The plaintiff’s daily duties were to prepare meals for the staff and residents of the Home, clean and wash the dishes and kitchen utensils after meals, clean up and dispose of rubbish and do general cleaning work. By the time of the accident, therefore, the plaintiff had about 10 years’ experience in this particular job. Prior to working for the defendant, the plaintiff had worked as a chef for 14 years, so he had a total of 24 years’ experience as a chef by the time of the accident. 5.There were two other chefs employed by the defendant at the Home. The chefs worked on a shift basis : Shift A being from 6.45 a.m. to 2.45 p.m., Shift P being from 11.30 a.m. to 7.30 p.m., and Shift B being from 10 a.m. to 6 p.m. Shift A was responsible for preparing breakfast and lunch, Shift P for preparing lunch and dinner, and Shift B for assisting Shifts A and P. If one of the chefs was on leave on any particular day, there would only be two shifts, Shift A and P, on duty on that day. 6.The chef on Shift A was responsible for disposing of the rubbish generated in the course of the preparation of breakfast and lunch. According to the work schedule set by the defendant for Shift A, this was to be done between 12 noon and 12.45 p.m. before lunch for the staff on Shift A was served between 12.45 p.m. and 1.15 p.m. 7.In order to dispose of the rubbish, the chef responsible would have to take the waste from the kitchen of the Home, which was situated on the first floor, to a rubbish collection point in the Home’s car park on the ground floor. The rubbish would be collected in plastic rubbish bags, which would be tied up at their tops when filled. The plastic bags would be placed in cardboard boxes on a cart and taken to the rubbish collection point on the cart. At the rubbish collection point, the chef would dispose of the plastic bags and cardboard boxes by placing them in a rubbish skip. The skips used by the Home were typical rubbish skips, the sides of which were about 1.3 metres high. The accident 8.On 21 November 2005, the plaintiff was working at the Home on Shift A. One of the other chefs at the Home was on leave, so there was no Shift B to assist him. At around 12.40 p.m., the plaintiff proceeded to dispose of the rubbish from that day’s Shift A in accordance with the procedure described above. 9.The plaintiff says there were 7 or 8 plastic bags of waste for him to dispose of at that time. He placed the plastic bags of waste into 2 or 3 cardboard fruit boxes on the cart in order to transport the waste to the rubbish collection point. When he reached the rubbish collection point, the plaintiff manually lifted the plastic bags of waste and the cardboard boxes in which he had transported them into the skip. 10.Whilst he was putting the last cardboard box into the skip, the plaintiff’s right middle finger became caught in one of the holes on the side of the cardboard box so that he could not release it. The combined weight of the cardboard box and the plastic bag or bags of waste inside it was such that he was pulled forward thereby sustaining an injury to his right middle finger and low back pain. 11.There is some question as to whether the box contained just one bag of rubbish or more than one. His oral evidence was that there was only one bag of rubbish in the box. On the other hand, in his witness statement and further and better particulars of the Statement of Claim, the plaintiff’s case appeared to be that the accident occurred when he was disposing of the last box containing 2 to 3 bags of rubbish, with a total weight of about 40 pounds. 12.The plaintiff says that each plastic bag of waste weighed between 20 to 30 pounds. The defendant disputes this and suggests that the bags of waste would each have weighed no more than 12 to 13 pounds. I shall return to this disputed issue of fact below. 13.There were no witnesses to the plaintiff’s accident, apart from the plaintiff himself. The plaintiff’s description, in his oral evidence, of the manner in which he disposed of the last bag or bags and the cardboard box was that he picked up the box by putting his right middle finger into one of the holes in the side of the box and he used his left hand to hold the side, rather than the base, of the box. He then lifted the box and its contents together in this manner and raised them over the side of the rubbish skip to drop them into it. Unfortunately, at this point, his right middle finger became stuck in the side of the box and he was not able to release the weight of the box and its contents as it fell into the skip. The falling weight sprained his finger and back. The plaintiff’s case on liability 14.It is the plaintiff’s case that the defendant is liable for the injuries sustained by him in the accident. By way of particulars of negligence or breach of contract, the plaintiff pleads the following particulars :
15.The plaintiff also asserts that the plaintiff was in breach of statutory duty, namely in failing to provide the plaintiff with not less than 1 rest day in every period of 7 days’ work contrary to section 17 of the Employment Ordinance (Cap.57). 16.Mr Y.L. Cheung, counsel for the plaintiff, confirmed in the course of closing submissions that the plaintiff was no longer pursuing the pleaded allegations of breach of statutory duty based on the Occupational Safety and Health Ordinance (Cap.509) and the Occupational Safety and Health Regulation (Cap.509A). 17.Mr Cheung submitted that the daily rubbish disposal duty was, in essence, a duty requiring the moving, transporting and lifting of weighty objects. He submitted that there was a lack of appropriate safety measures and a lack of a safe system of work in place for the rubbish disposal duty. Discussion as to liability The weight of the bags 18.It is axiomatic that the weight of any one bag of rubbish might vary depending on its contents. The bags used for the disposal of rubbish in the kitchen at the Home were standard black plastic garbage bags measuring 24 inches by 26 inches and being 0.07 mm thick. 19.Mr Yeung submitted that the Court should adopt a common sense approach to this issue by looking at the total number of people served by the kitchen on a daily basis. There were approximately 100 residents and 20 staff members for whom meals were served. He posed the question: how much waste would have been left over on the tables by 120 people after a meal and how much would have been produced from the kitchen? The Shift A chef would be removing the rubbish produced by two meals, being breakfast and lunch. The likely bulk purchasing of food supplies by the Home would produce more packaging and wrapping material than a domestic kitchen. He suggested it was appropriate to assume that one person after two meals could produce up to one pound of waste so that there would have been 120 pounds of rubbish to dispose of. In 6 to 8 bags, this would mean each bag would have weighed close to or even more than 20 pounds. He submitted that the very fact of the injury to the plaintiff’s finger suggests the last rubbish bag must have been “significantly heavy”. 20.I do not consider that the evidence supports a finding that the bags of rubbish disposed of by the plaintiff at the time of the accident were of a weight of 20 to 30 pounds. I say this for a number of reasons. 21.First, it was common ground that the chefs in the Home had been instructed to fill the bags only half full, to prevent them being too heavy. I accept the evidence of Madam Kwok Ka Kei, the officer responsible for the Home’s daily administration, that this instruction was given to the plaintiff and his colleagues by her predecessor, Mr Tang So Han, and it is also reflected in paragraph 3.4 of the minutes of a cooks’ meeting for the Home held on 19 June 2000 attended by the plaintiff. The photograph of the rubbish bin in the kitchen in which the rubbish bags were placed indicates that almost half of the bag was draped over the side of the rubbish bin. This would mean that even when the bin was full, the bag would be about half full. 22.It would be common sense not to fill the bags too full so that they could more easily be tied at their necks for easier and tidier disposal into the rubbish skip and to avoid the risk of the bag breaking. Both Madam Kwok and Mr Chan Kwok Keung, a retired chef who had worked in the Home’s kitchen at the time of the plaintiff’s accident, gave evidence that the bags of rubbish from the Home’s kitchen would have weighed around 10 pounds. For Mr Chan’s part, he based this on the fact that he weighed a bag of rubbish after the plaintiff’s accident and found that it was “12 or 10 odd pounds”. He gave evidence, which I accept, that when he first started working at the Home he used to overfill the rubbish bags and the plaintiff instructed him not to do so because the bag might break. He was told only to fill it half full instead. 23.It does not, of course, follow that just because the bags were only half-filled they should weigh 12 to 13 pounds (which was Mr Chan’s estimation of the weight of the rubbish bags he would customarily dispose of) rather than 20 to 30 pounds as claimed by the plaintiff. 24.However, the plaintiff’s estimation seems, on its face, rather high. I do not think there is any proper basis for making the assumption Mr Yeung made, that each person would produce one pound of rubbish after two meals. Furthermore, if the plaintiff’s estimate were correct, the trolley he was pushing with 7 to 8 bags on it, would have had a combined weight of somewhere between 160 to 240 pounds. Yet, against this, it would appear that the plaintiff told the occupational therapist he consulted at the Duchess of Kent Children’s Hospital Occupational Therapy Department that his job entailed occasional pushing “of 40 lbs garbage collection trolley”. 25.In my judgment, the plaintiff has either exaggerated the weight of the last bag of rubbish he was disposing of or there was more than one bag of rubbish in the box. Mr Kumar Ramanathan SC, counsel for the defendant, pointed out that the plaintiff’s case as to the number of bags in the last box has changed in the course of the proceedings. In contrast to his witness statement and further and better particulars of the Statement of Claim, referred to above, the plaintiff’s oral evidence at trial was that there was only one bag in the last box and that it weighed 20 to 30 pounds. At the very least, this change in the plaintiff’s case is such that I must regard his estimate of the weight of the last rubbish bag with some skepticism. 26.For the reasons set out above, I find that the bags of rubbish the plaintiff was required to dispose of weighed 12 to 13 pounds or thereabouts and not 20 to 30 pounds as claimed by the plaintiff. Were proper safety measures implemented? 27.Mr Cheung submitted that it was not clear what safety instructions had been given to the plaintiff in relation to the proper manner or posture in the lighting and dumping of rubbish bags into the rubbish skip. Although chefs were told not to make the bags too heavy, no actual guidance was given as to what might constitute too heavy a weight. Also, although gloves and aprons were provided, he submitted there was no evidence that chefs would use them, or were advised to use them, in disposing of rubbish. 28.Against this, however, is the fact that, on the plaintiff’s own evidence, he was given safety instructions and training. A leaflet about proper lifting techniques was given to the plaintiff and posted on a notice board in the kitchen. Neither of the defendant ’s witnesses was cross-examined on the subject of the alleged failure to provide safety instructions and guidelines. 29.The plaintiff himself acknowledged in his cross-examination that all the chefs at the Home were consistently told to make sure the bags were not too full and to keep them half full if necessary. He said that the chefs often had meetings with the management at which health and safety issues were discussed. He also specifically said the chefs were often taught how to lift weights by bending down or squatting to do so. He confirmed he was given two aprons and two pairs of gloves by the plaintiff. 30.In the light of the above evidence, I find that there is no substance in the plaintiff’s complaint of a lack of safety measures, training and instructions. Was there a safe system of work? 31.Mr Cheung submitted that the Home’s rubbish disposal process had not received appropriate attention. He submitted that the risk of harm to the plaintiff must have been foreseeable in the light of the fact the process was a mundane job, carried out at a time of natural fatigue after six hours’ work, and done under time constraints and pressure. As regards the latter point, it was the plaintiff’s case that the chef’s work schedule for Shift A showed that the rubbish disposal had to be completed in the period between 12 noon and 12.45 p.m., when the staff meals had to be served. 32.Against this, I must take into account the fact that the plaintiff was, at the time of the accident, a chef with over 24 years’ experience in general and 10 years’ experience in this particular job. The rubbish disposal process was, in my opinion, a very straightforward uncomplicated task. It involved putting half‑filled bags of rubbish into cardboard boxes placed on a trolley, pushing the trolley from the kitchen to the lift, then from the lift to the rubbish skips, then lifting the bags of rubbish and putting them and the boxes into the skips. 33.As to the contention that the work had to be completed under time constraints, the plaintiff’s case is contradicted by the evidence of Madam Kwok and Mr Chan for the defendant who both maintained that the chefs on Shift A were permitted flexibility as to the time at which they disposed of the rubbish. Thus, they maintained, it was permissible for the chef on Shift A to wait until after the staff meal had been served to dispose of the rubbish. There was no evidence that there was any particular need to have the rubbish disposed of by 12.45 p.m. precisely, for example because that was when the rubbish was itself collected by some other person from the rubbish collection point. I accept Mr Chan’s evidence that he did on occasion dispose of the rubbish after 12.45 p.m. and that this was acceptable and within the chef’s discretion. It follows, therefore, that there was no time pressure on the plaintiff to dispose of the rubbish by 12.45 p.m. and that it would have been acceptable for him to do so at a later point prior to the end of Shift A at 2.45 p.m. 34.In any event, there was no evidence to suggest that the plaintiff’s accident was caused or contributed to by his rushing to get the task of disposing of the rubbish completed by any particular time. 35.In my judgment, I am unable to distinguish the present case from the case of Cheung Suk Wai v. Attorney General [1996] 4 HKC 288, a case involving a worker of the Regional Services Department who was injured when swinging rubbish bags into a rubbish container. In that case, Leong J (as he then was) held (at p.296B-D) that :
36.The cases relied upon by Mr Cheung in support of his submission that there was a failure to provide a safe system of work in the present case are, in my opinion, readily distinguishable.
Failure to give a rest day? 37.The plaintiff’s work schedule shows that he had worked for the 10 days prior to the date of the accident without a day off work in that period. In his evidence, he said that for 7 of those 10 days there had been a fund raising activity at the Home. It is not clear whether it was being suggested that the fund raising activity meant that the plaintiff would have had more work to do than usual or whether it was the explanation for his not having had a day off work in the 10 day period in question. 38.Be that as it may, Mr Yeung made no submissions in respect of this allegation. In any event, I do not consider that the alleged breach of statutory duty contributed in any way to the plaintiff’s accident. It is my finding instead that the likely cause of the accident was the plaintiff’s inappropriate method of lifting by holding the box by the sides rather than from below. Conclusion on liability 39.This was a simple task, which the plaintiff had done many times before. He had been given adequate instructions to avoid having to lift too heavy a load. He chose to lift the box by holding its sides rather than lifting it from below as he had been instructed was the proper method of lifting. Whether there was only one bag of rubbish left in the box at that time or 2 to 3 bags as earlier suggested, this was not an appropriate method of lifting. He appears to have adopted the method he did because he was concerned about the contents of the box leaking onto his clothes. As to this, he was supplied with aprons and gloves and could have worn these and thereby avoided, or at least mitigated, his concern. 40.This was not a task, in my view, which required supervision. As Lord Oaksey observed in Winter v. Cardiff Rural District Council [1950] 1 All ER 819 (at pp.822-823) :
41.In all the circumstances, I find that the plaintiff has not established liability against the defendant for this accident. 42.Even if I had found liability established, I would have found the plaintiff was wholly the author of his own misfortune in adopting an inappropriate lifting method. I would therefore have found him to be guilty of 100% contributory negligence. Quantum 43.Having found against the plaintiff on liability, his claim stands to be dismissed and it is strictly unnecessary to deal with the quantum of the claim. However, in case I am wrong in any respect as to liability, I shall consider the issues arising in respect of quantum and briefly state my conclusions on the various heads of damages claimed. The plaintiff’s injuries and treatment 44.After the accident, the plaintiff was treated at the Accident & Emergency Department of Queen Mary Hospital and was found to have a tender and swollen right middle finger and mild tenderness over his back. 45.He continued to experience persistent low back pain and right middle finger pain and was treated at the Aberdeen Jockey Club General Out‑Patient Clinic over 20 times in the period from 23 November 2005 to 21 March 2006. He also received follow-up treatment from the Queen Mary Hospital Specialist Out Patient Clinic. 46.On 19 December 2005, the plaintiff was referred to the Department of Orthopaedics of Queen Mary Hospital. He was referred to the David Trench Rehabilitation Centre for physiotherapy for his lower back pain on 15 February 2006 and received 14 sessions of physiotherapy there. He was also referred for occupational therapy on 12 December 2006. 47.Due to persistent low back pain, the plaintiff was admitted to an intensive rehabilitation program at the Duchess of Kent Children’s Hospital at Sandy Bay in which he received occupational therapy and physiotherapy at the Maclehose Medical Rehabilitation Centre and the Duchess of Kent Children’s Hospital. 48.He received sick leave certificates for the periods 21 November 2005 to 14 January 2007, from 10 April 2007 to 28 September 2007 and from 27 October 2007 to 23 November 2007. The Medical Assessment Board’s Certificate of Review of Assessment certified that the periods of absence from duty necessary as a result of his injury were from 21 November 2005 to 14 January 2007 and from 10 April 2007 to 3 August 2007. Findings as to the plaintiff’s injuries sustained as a result of the accident 49.The plaintiff was examined by Dr Lung Ting Kwan, (on the appointment of the plaintiff) on 18 April 2008 and by Dr H.F. Cheng David (on the appointment of the defendant) on 1 December 2008. Both Dr Lung and Dr Cheng are specialists in orthopaedics and traumatology. 50.Dr Lung’s diagnosis was of muscular sprain of the lumbar spine, recovered with functional deficit, and right middle finger soft tissue sprain, recovered. He considered the plaintiff had reached the state of maximal medical improvement and did not consider any operation or treatment was necessary except for physical training by the plaintiff himself. There was no loss of life expectancy and the prognosis is fair to good. 51.Dr Lung thought the long sick leave period was appropriate. He considered the plaintiff was fit to return to work but in a job which did not require him to squat or do heavy lifting. He assessed the plaintiff as having an impairment of the whole person of 3%. 52.For his part, Dr Cheng’s diagnosis was that the plaintiff had sustained a simple sprain of the back and right middle finger. The plaintiff’s back was found to be in a satisfactory condition and the injuries were simply soft tissue, sprain injuries to the back and the right middle finger. Whilst the plaintiff might have some aches and pain at times, his functional disability was not severe. There was no medical indication for a change of job. Dr Cheng thought that sick leave to January 2007 was reasonable. 53.I do not consider there to be any substantial difference between the experts as to the nature of the injuries sustained by the plaintiff as a result of the accident, namely a muscular sprain of the lumbar spine and a right middle finger soft tissue sprain. 54.The experts both consider the right middle finger injury to have recovered. The real difference between the experts is whether there is such residual disability in respect of the back injury as to preclude the plaintiff from resuming his pre-accident employment. In this respect, I prefer the evidence of Dr Cheng that, although the plaintiff may suffer from some aches and pains at times, there is no medical indication for a change of job. Pain, suffering and loss of amenities 55.The plaintiff claimed $200,000 under this head. Against this, Mr Ramanathan submitted that an award of $80,000 to $100,000 would be more appropriate. 56.Having considered the cases cited by both parties in respect of this head of damage, I consider that the plaintiff’s injuries as I have found them are closer to the cases cited by Mr Ramanathan than those which Mr Yeung referred me to. I would therefore have made an award of $100,000 in respect of pain, suffering and loss of amenities. Loss of earnings (pre-trial) 57.The plaintiff was paid his full salary from the date of the accident until 3 August 2007. As noted above, this was the date to which the Medical Assessment Board assessed the plaintiff’s absence from work to have been necessitated as a result of his injuries. 58.The plaintiff claimed a total of $230,586 under this head. The period of the claim was from 3 August 2007 to the date of trial. For the period from 3 August 2007 until 1 February 2008, the claim was for the full amount of the plaintiff’s wages from the defendant. For the period from 1 February 2008 to the date of trial, the claim was based on the difference between his monthly salary from the defendant and the lower monthly salary he earned in his present employment as a security guard. 59.The plaintiff had in fact returned to work with the defendant on light duties for a short period between 15 January 2007 and 8 April 2007 but ceased work as from 9 April 2007 when he obtained a series of sick leave certificates from a private doctor in respect of his finger injury. 60.I note Dr Lung’s view that the plaintiff is handicapped permanently for employment as a chef because of his inability to squat for a prolonged period of time and his back and right hand prevent him engaging in “heavy physical exertion”. However, it is not clear why this is an impediment to the plaintiff returning to work as a chef, since that work would not appear to involve prolonged squatting and only involved occasionally lifting weights of about 50 pounds to from floor to waist level and 40 pounds from waist to shoulder level. 61.As against this, I have the evidence of Dr Cheng, whose opinion is that there is no medical indication for a change of job. 62.In the final assessment report for the plaintiff from the Duchess of Kent Children’s Hospital Occupational Therapy Department dated 9 January 2007, the occupational therapist concluded that all of his work strengths already met his job demand, which was medium level. It was shortly after this report that the plaintiff returned to light duties with the defendant. 63.When it was put to him that he went to see a private doctor in April 2007 to get a sick leave certificate because a Government hospital or clinic would not have given him one, he agreed that this was one of the reasons. Given the fact that the plaintiff also accepted in cross-examination that he was able to discharge his duties under the light work arrangement without any difficulties, it is difficult to avoid the inference that the plaintiff was actively seeking to avoid going back to work as a chef. The fact that he did not even attempt to return to his employment as a chef at the Home after the expiry of the three-month light duty period in April 2007 further reinforces this inference. 64.I am not persuaded that the plaintiff was unable to resume work in his pre-accident employment as a chef as from 3 August 2007 when the period of his sick leave came to an end. I would therefore not have made any award under this head. Future loss of earnings 65.The plaintiff also claimed future loss of earnings applying a multiplier of 4 in respect of the difference between his pre- and post-accident employments. The total figure claimed was $359,280. 66.For the reasons explained above, I consider that the plaintiff could and should have returned to work as a chef as from 3 August 2007. Therefore, I would not have made any award under this head. Loss of earning capacity and loss of fringe benefits 67.The plaintiff claimed $100,000 under the head of loss of earning capacity. 68.Given the view I have reached that the plaintiff could and should have resumed his pre-accident employment, I would not have made an award for loss of earning capacity. 69.As regards the loss of fringe benefits, the plaintiff put forward no evidence to quantify this. It would therefore not have been possible to quantify any such claim in any event. Special damages 70.These were agreed at $3,000. Summary of awards 71.Had I found in the plaintiff’s favour on liability, the quantum of damages that would have been awarded to the plaintiff would therefore have been :
72.Against this sum, the plaintiff would have had to give credit for the sum of $36,748.80 received by him as employees’ compensation. Interest 73.Interest at 2% per annum would have applied to the general damages from the date of the writ to the date of judgment and thereafter at the judgment rate. 74.As for the damages for special damages, interest would have been awarded on these damages at half the judgment rate, namely 4%, from the date of the accident until the date of judgment. Costs 75.Since I have determined the issue of liability against the Plaintiff, the plaintiff’s action stands to be dismissed with costs to the defendant. The plaintiff’s own costs will be taxed in accordance with the legal aid regulations. 76.The Master noted there was a prima facie breach of Practice Direction 18.1. As I understand it, this was because the plaintiff was separately, rather than jointly, examined by the respective experts. The Master deferred the question of the costs of the expert medical reports to the trial Judge to exercise a discretion on whether to refuse the costs of the expert medical reports. Although there was no joint medical examination as required, I shall not refuse costs in relation to the expert medical reports as there would not appear to have been any additional costs incurred as a result of the examinations being separate rather than joint.
Mr Y.L.Yeung, instructed by Messrs Leung, Tam & Wong, for the Plaintiff Mr Kumar Ramanathan SC, instructed by Messrs Leung & Lau, for the Defendant |
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