Wong Ching Yau v. Group Yield International Development Ltd t/a Federal Restaurant

CACV76/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.76 OF 2010

(ON APPEAL FROM HCPI No. 637 OF 2008)

-----------------------

BETWEEN

-----------------------

Before : Hon Hartmann, Fok JJA, and Bharwaney J in Court

Date of Hearing : 9 December 2011

Date of Judgment : 9 December 2011

Date of Handing Down Reasons for Judgment : 16 December 2011

---------------------------------

REASONS FOR JUDGMENT

---------------------------------

Bharwaney J (giving the judgment of the court) :

1.Very often a claim for damages for personal injuries suffered in an accident at work relates to an injury to the lower back.  This is one such case.  It came on for trial before Deputy High Court Judge Burrell in January last year.  On 27 January 2010, he dismissed the plaintiff’s claim.  He also made findings on the quantum of the plaintiff’s claims.  The plaintiff has brought this appeal against the learned judge’s findings on liability and on quantum. After hearing the parties on liability, we dismissed the plaintiff’s appeal on liability and we did not deal with quantum.  These are our reasons.

2.The plaintiff was employed by the defendant as a waitress in its restaurant called Federal Restaurant that was located in Hollywood Plaza in Diamond Hill, Kowloon.  Although the plaintiff had started work in this particular restaurant for only about two months before the accident complained of, she had considerable experience as a waitress and had been employed by the defendant, since September 2003, to work at another restaurant of the defendant, also in Hollywood Plaza, called Federal Seafood Restaurant.

3.At about 11 pm on 11 September 2005, the plaintiff, as she had done many times in the past, was clearing the tables in Federal Restaurant after the conclusion of a banquet.  The tables had revolving glass turntables on them, commonly known as a “lazy Susan” and used to hold food or condiments.  She was returning one of the glass turntables to its storage cabinet when she suffered a back strain.  She had done this work over 100 times, both at Federal Seafood Restaurant and at Federal Restaurant, during the two years that she had been employed by the defendant.

4.The glass turntable was about 30 inches in diameter, three quarters of an inch thick, and weighed about 25 lbs.  She had taken it off the table, without causing any injury to herself, and had rolled the glass turntable towards the storage cabinet, some 20 feet away.  This cabinet had been specially built to store about 25 of such glass turntables vertically in slots separated by pieces of wood.  The learned judge found that the storage cabinet, which is depicted in the photographs in the appeal bundle, had wheels which were about 3 inches high and that the floor of the cabinet was another 4 inchesabove the wheels.

5.However, the plaintiff did not have to lift the glass turntable a distance of some 7 inches, from the floor of the restaurant to the floor of the storage cabinet, in order to store it inside the cabinet.  This was because a heavy duty rubber mat, about 2 inches thick and which almost reached to the top of the wheels of the storage cabinet, had been placed in front of the cabinet in order to facilitate the work of storing the glass turntables in them. Although the plaintiff had said otherwise in her evidence, the learned judge had accepted the evidence of the defendant’s business manager, Mr Tsui Kwong Lam (“Mr Tsui”), that the rubber mat that was placed in front of the storage cabinet on the night in question extended across the full width of the cabinet.  A similar rubber mat is also depicted in the photographs in the appeal bundle.

6.The plaintiff had given evidence, which the learned judge did not accept, that the mat did not extend across the full width of the cabinet.  She had also said that, because the slots in the middle of the cabinet above the rubber mat were all occupied, she had no alternative but to lift up the glass turntable from the floor of the restaurant to the floor of the cabinet in order to store it in one of the empty slots at the side of the cabinet.  When she was questioned later about this by the learned judge, she answered that, in fact, she had used the rubber mat placed in the middle of the cabinet to push the glass turntable from the rubber mat onto the floor of the cabinet and she had then manoeuvred the glass turntable to the side of the cabinet in order to store it in one of the empty slots there.

7.The learned judge accepted the evidence of the plaintiff that, towards the end of the manoeuvre, she felt pain in her back.  If the plaintiff’s version of how she stored the glass turntable had been accepted by the learned judge, that acceptance would have led him to conclude that the accident was caused by an improper procedure adopted by the plaintiff to roll the glass turntable onto the floor of the cabinet, where there was no free slot, and then to manoeuvre the glass turntable by twisting and rolling it to where there was a free slot in the cabinet.  As the learned judge rightly pointed out :

“Even if this version were true, she should have ensured that the mat or mats were in front of the slot into which she was about to roll the turntable before carrying out the operation.”

8.As it turned out, the learned judge did not accept the evidence of the plaintiff but accepted the evidence of Mr Tsui who, he found, was a helpful and straightforward witness.  The learned judge found that the rubber mat did extend across the full width of the cabinet and that the plaintiff had rolled the glass turntable from the floor of restaurant to the top of the rubber mat and that she had then rolled the glass turntable up to the floor of the cabinet.  He accepted the plaintiff’s evidence that she felt the pain in her lower back in the course of storing the glass turntable inside the cabinet and he found that her back, which had pre-existing degeneration, was probably strained when storing the glass turntable.  However, he was not satisfied, for the reasons he gave and which we set out below, that the injury to her back was caused by the defendant’s negligence or breach of statutory duty :

“16. In my judgment, a common sense view of the matter is that the rolling of a 25-lb glass turntable, onto a rubber matter and then into a compartment of a purpose built cabinet does not create safety or health risks.

17. It is further submitted that the defendant is under a statutory duty (section 30) to assess the plaintiff’s capability to perform such a task.

18. The plaintiff had started work in this particular restaurant about 2 months before the ‘accident’. It is true that no specific assessment of her ability to roll glass turntables into the cabinet had been made. However, she had considerable experience as a waitress, this task was not new to her and it was reasonable to assume that she was capable of doing the job, which in any event I do not regard as an unsafe one or one which creates a health or safety risk.

…

20. In my judgment, whilst it is of course regrettable that the plaintiff strained her back whilst working on 11 September 2005, the evidence cannot support any of the claims and submissions made against the defendant. The evidence, taken as a whole, fails to establish that it was foreseeable that the particular manual operation created a risk to an employee’s health or safety.

21. Even if it did, on the most favourable view to the plaintiff, it was at the very lowest end of tasks which created such a risk and I am satisfied that for such a risk the defendant had complied with its statutory duty.

22. The defendant knew that the plaintiff was an experienced waitress when she commenced work at this particular restaurant in about July 2005. She had worked as a waitress since 2001. The plaintiff had manoeuvred and stored similar turntables in her previous employment. She was given standard training when she first became a waitress. Each day there was a ‘briefing session’ before work began and once a week, on Sundays, there was a staff meeting to evaluate and discuss all work related matters. Such meetings were the forum when safety matters could be discussed. The plaintiff was always given appropriate rest periods. Finally, and importantly, the task itself was a simple and straightforward operation. The plaintiff’s case depends, as pleaded, wholly on the operation of putting the turntable into the storage cabinet. It was correctly noted by counsel that the act of removing the turntable from the table was a more difficult task. However, the operation under scrutiny, on all the evidence, was one that the plaintiff was trained and able to do without foreseeable risk to herself.”

Negligence

9.The question raised on the appeal boils down to this: was the system of work which required an employee to roll or lift or push a glass turntable weighing 25 lbs a distance of about 4 to 5 inches from the rubber mat to the floor of the storage cabinet unsafe?  In our judgment, it was not unsafe.  We cannot fault the reasoning of the learned judge in support of his conclusion that it was not reasonably foreseeable that the particular manual operation in this case created a risk to an employee’s health or safety. 

10.It seems to us particularly relevant that the plaintiff had done this same task many, many times before without any mishap.  As we understand the evidence, the rubber mat used at the Federal Restaurant simply neutralised the height difference created by the fact the storage cabinet there had wheels, whereas the storage cabinet used at the previous restaurant the plaintiff worked in did not have wheels. The point is that the height the glass turntable had to be raised, in order to store it in the cabinet, was about the same in both restaurants.

11.Although force had to be applied to roll and raise the glass turntable from the level of the rubber mat to the level of the floor of the cabinet, the force needed to achieve this was not a force which, in our judgment, gave rise to a foreseeable risk of injury as would require a prudent employer to reduce or eliminate the use of such force by either ensuring that the floor of the cabinet was flush with the floor of the restaurant or, otherwise, by providing a proper ramp that reached up to the level of the floor of the cabinet.  As noted by the learned judge, the force required to roll the glass turntable form the rubber mat to the floor of the cabinet was not a great force.  To quote from the learned judge’s exchange with counsel for the plaintiff :

“you say ... “force” is required to get it from the level of the rubber mat to the bottom of the cabinet, a distance of about 3 inches. And when a thing is being rolled, it doesn’t weigh 25 lbs and it may be said by the defendant that this is child’s play; this is a very simple manoeuvre.”

We are not persuaded by the submissions we heard that the learned judge was wrong in his conclusions.

12.It was submitted on behalf of the plaintiff that pressure of work caused or contributed to the accident. However, the evidence of the plaintiff was that she was in a hurry to finish the job as other colleagues were following behind her and that, therefore, she did not move the rubber mat to the side of the cabinet where there was a free slot.  Once the learned judge rejected her evidence in that regard, pressure of work was no longer relevant to the occurrence of the accident.  If anything, it is probably safer to roll the glass turntable from the rubber mat to the floor of the cabinet quickly rather than slowly.

13.It was also submitted that the cramped conditions caused or contributed to the accident.  We do not agree with that submission.  One of the photographs shows a waitress squatting on the mat and holding a glass turntable which she is about to roll up to the floor of the cabinet.  Mr Tsui gave evidence that the waiter or waitress first had to crouch down on the rubber mat and then use both hands to slightly push the glass turntable upwards onto the floor of the cabinet.  In our judgment, there was sufficient space to do so safely into any free slot of the cabinet, by leading with the left hand to push the glass turntable upwards into a slot of the left side or by leading with the right hand to push the glass turntable upwards into a slot of the right side.

14.Mr Tsui had never been aware, in his 13 years’ of experience, of injury being sustained when glass turntables had been rolled into these purpose built cabinets which were, and continue to be, widely used in Hong Kong.  The reference to Mr Tsui’s “30 years’ experience”, in paragraph 10 of the judgment below, is a typographical error.

15.As was stated by the Court of Appeal in its recent judgment in Chiang Ki Chun Ian, a minor v Li Yin Sze (CACV26/2011, 21 October 2011), in order to determine whether or not there was any breach of duty, the court must assess whether the risk of harm arising from the conduct complained of was real or fanciful, and the court must do so by assessing the likelihood of the risk materialising on the specific facts and circumstances of the case before it, and by balancing the likelihood of the risk materialising against the severity of harm, were it to materialise, the cost and practicality of precautions, and the utility of the activity in question.

16.Back strains and back sprains often occur at work.  Many such occurrences can be avoided by implementing and adhering to a safe system of work.  Occasionally, a back strain can occur at work without negligence on the part of the employer or on the part of the employee.  This is one of those cases.

Breach of Statutory Duty

17.A substantial part of the submissions made on behalf of the plaintiff were centred on the alleged breaches of Regulations 23, 25, 27 and 30 of the Occupational Safety and Health Regulations enacted under the Occupational Safety and Health Ordinance (“OSHO Regulations”).  We accept that the act of rolling the glass turntable into the storage cabinet was a manual handling operation, as defined under Regulation 22. Accordingly, the defendant employer, who was the person responsible as defined in section 2(2) of the main ordinance, was required :

(a) to ensure, under Regulation 23, that a preliminary assessment was made of the risks to the safety and health of employees who undertake the manual handling operations, before the work was first undertaken;

(b) under Regulation 24, to avoid, as far as reasonably practicable, the need to undertake any manual handling operations which may create safety and health risks;

(c ) under Regulation 25, if it was not reasonably practicable to avoid the need to do so, to make a further assessment of the risks to the safety and health of employees having regard to the matters set out in Schedule 3 before the work was first undertaken; and

(d) under Regulation 27(1)(a), to ensure that appropriate steps are taken to reduce the risks to safety and health of employees to the lowest level that was reasonably practicable.

18.The learned judge held that the task of manually raising the glass turntable in order to store it in the cabinet did not create any safety or health risk.  Even if we were to decide otherwise, we are satisfied that these statutory requirements were complied with by the defendant in this case where it was not reasonably practicable to avoid the need for a waiter or waitress to manually raise the glass turntable in order to store it in the cabinet and where the defendant had implemented a system of work which included the deployment of rubber mats extending across the full width of the cabinet so as to reduce the height the glass turntable had to be raised in order to store it in the cabinet.  The use of the rubber mat, in conjunction with the work practice of the waiter or waitress first squatting down on the rubber mat and then using both hands to push the glass turntable upwards from the rubber mat onto the floor of the cabinet, reduced the risk to safety and health to the lowest level that was reasonably practicable.  We agree with the finding of the learned judge, in this regard, in paragraph 21 of his judgment which we have set out above.

19.Complaint was also made that Regulation 30 had been breached because the defendant employer had failed to assess the capability of the plaintiff to perform the task of manually raising the glass turntable, in order to store it in the cabinet, without risk to her safety and health, before allocating such work to her.  We agree with the conclusion of the learned judge that Regulation 30 was complied for the reasons given by the learned judge in paragraph 18 of his judgment which we have set out above.  In our judgment, the obligation under Regulation 30 can be discharged, and was discharged in this case, by considering the past experience of the employee in order to assess his or her capability to undertake the manual handling task in question.  As the learned judge rightly noted, the plaintiff had considerable experience as a waitress having worked as such since 2001, the task in question was not new to her, and it was reasonable to assume that she was capable of doing it.

20.Whilst we are satisfied that the OSHO Regulations referred to above were complied with in this case for the reasons we have set out above, we do not intend, by this judgment, to create a precedent on the proper construction of the OSHO Regulations identified above which must await an appropriate case.  We did not receive detailed submissions on the construction of these regulations, nor did we hear full argument on their proper construction, and we leave open the issue of the nature and extent of the risk assessment required to be conducted by, or on behalf of, the person responsible under the OSHO Regulations identified above, in respect of work procedures that are more complicated than the simple act of storing a glass turntable in a storage cabinet.

21.However, even if the requirements of the OSHO Regulations identified above had not been complied with in the present case, we are not satisfied that compliance with those requirements would have led to any change in the system of work in this case. As conceded by counsel for the plaintiff, he could not say whether safety consultants, conducting a risk assessment guided by Schedule 3 of the OSHO Regulations, would have changed the system of work in this case.  The Court of Appeal in O’Neill v DSG Retail Ltd [2003] ICR 222 were satisfied that the breach of the regulations considered by the court was a cause of the accident in that case.  However, it has not been established to our satisfaction that any breach of the provisions of OSHO Regulations identified above was causative of the injury suffered by the plaintiff. 

22.The appeal is dismissed with costs to the defendant.  The plaintiff’s own costs are to be taxed pursuant to the Legal Aid Regulations.

Mr Ronald Tang, instructed by Messrs Fung, Wong, Ng & Lam, for the Plaintiff / Appellant

Mr Christopher T.M. Wong, instructed by Messrs Y.C. Lee, Pang, Kwok & Ip, for the Defendant / Respondent