Cheng Kwing Yeung v. Hong Kong Ham Holdings Ltd

CACV 24/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2014

(ON APPEAL FROM THE DISTRICT COURT IN DCPI NO 736 OF 2011)

_______________

_______________

_______________

J U D G M E N T

_______________

Hon McWalters JA (giving the judgment of the court):

Introduction

1.On 27 April 2008 the appellant, then aged 59, was injured in the course of his employment.  The appellant pursued claims against the respondent in negligence and under section 3 of the Occupiers’ Liability Ordinance, Cap 314.  Also, the negligent failure to take reasonable care to ensure that the place in which the appellant was instructed to work was safe was, it was claimed, a breach of an implied term of the appellant’s contract of employment with the respondent. The failure to provide a safe system of work was also said to be a breach of the statutory duties owed by the respondent under sections 6(1) and 6(2)(a), (d) and (e) of the Occupational Safety and Health Ordinance, Cap 509 (“OSHO”) and section 6A(2)(a), (d) and (e) of the Factories and Industrial Undertakings Ordinance, Cap 59 (“FIUO”).  The respondent denied liability and pleaded contributory negligence by the appellant.

2.The appellant’s claims were tried before District Judge Chow (“the Judge”) on 5-7 March 2013 and 15 April 2013.  On 9 May 2013 the Judge delivered his judgment dismissing the appellant’s claim with costs to the respondent.  The appellant filed a notice of application for leave to appeal that decision on 5 June 2013 which the Judge dismissed on 24 July 2013.  On 29 January 2014 Lam VP granted the appellant leave to appeal to the Court of Appeal against the judgment of the Judge.

3.The appeal was heard by us on 6 November 2014 and at the conclusion of the hearing we reserved our judgment which we said we would hand down at a later date. This we now do. 

The appellant’s accident

4.The respondent operated a factory at Block C2, 1^st Floor, Tuen Mun Industrial Centre, TMTL, No 76 Pui To Road, Tuen Mun.  The respondent manufactured ham for local market use and the appellant was employed by the respondent in its production department.  The appellant’s duties involved cleaning the lids of metal moulds that were used in the production process. The workplace where this was usually done was under renovation and the place nearby where the appellant was temporarily relocated to perform these duties was a tiled corridor between a meat mixing machine and an ice making machine. Almost in the middle of the width of this corridor was a drain and it was beside the drain that the appellant cleaned the lids of the moulds.  The cleaning process had to take place close to a drain as the cleaning of the lids was done by a high pressure water gun.

5.The lids of the moulds that needed to be washed were stored in a steel container and, once washed, the cleaned lids were placed in red plastic boxes.  These red plastic boxes were lined up along the side of the ice-making machine.  The lids that had to be washed were removed from their steel containers and scattered across the floor of the corridor opposite the red plastic boxes.  The appellant would pick up a lid from those scattered on the tiled floor, stand beside the drain, wash it with the high pressure water gun and then place the cleaned lid in the red plastic boxes.  The hose of the high pressure water gun trailed the tiled floor in front of the appellant, away from the area where he was washing the lids.  Effectively the appellant was washing at the drain and the lids to be washed lay on the tiled floor north of his position whilst the hose of the water gun trailed along the floor to a connection south of his position.

6.The appellant was provided with plastic waterproof boots in order to enable him to carry out his duties safely in wet areas.  The respondent recognized that the appellant’s duties would, to a limited extent, create a greasy and slippery working environment but maintained that the special shoes provided to the appellant would enable him to carry out those duties safely.  We have seen only photographs of the boots but from those photographs it is not apparent to us that they are specifically designed for greasy and slippery (as opposed to merely wet) working environments.

7.The accident occurred at about 2 am whilst the appellant was working a night shift.  In his witness statement he said he was cleaning 60 odd mould lids when he saw an assistant production gaffer by the name of Tang Kam Hung trying to move two steel containers loaded with ice cubes.  He was pushing one container with his right hand whilst at the same time pulling a similar container with his left hand.  The appellant described what happened next as follows:

“Therefore, I intended to go up and assist him in pulling one of the wheeled steel containers next to the ice-making machine. Then, I put down the water gun, turned around and intended to get close to the wheeled steel container. At this juncture, my left foot was tripped by the hose of the water gun. Since the floor at that place was fully covered with water and greasy with bits of meat, it was extremely wet and slippery. I tried my best to keep my balance but since the surface on which I rested my foothold was too wet and slippery, it was unavoidable that I lost balance. My left buttock landed first, as a result of which my whole body landed on the floor.”

8.The Statement of Claim asserted, in respect of the condition of the area in which the appellant was working, that the workplace was narrow and congested, water was dripping from the ice-making machine and oil from the meat-mixing machine had accumulated on the floor.  In respect of these conditions it was averred:

“The greasy water in the process of washing the lids of metal moulds, mixing with the water dripping out from the ice-making machine and the oil accumulated and left behind from the food‑mixing machine had caused the floor of the relocated workplace to be wet, greasy and slippery at all material times.”

9.It was also claimed that the plastic shoes provided to the appellant by the respondent were “seriously worn out”.

10.The Statement of Claim described the accident as follows:

“In the course of the Plaintiff’s turning around to the direction of his co-worker who was then standing nearby to him at his back, he was tripped by the plastic water hose lying on the floor, and at the juncture of his trying to retain his balance, he could not maintain any steady foothold at all due to the wet, greasy and slippery floor. The Plaintiff slipped and fell backward onto the floor and thereby sustained injuries as a result.”

11.In its defence the respondent specifically denied that the workplace was narrow and congested and that the safety shoes provided to the appellant were worn out and asserted that the limited extent to which the workplace was slippery and greasy did not render it unsafe.

12.The appellant’s injuries from this accident were summarized in the Revised Statement of Damages as being:

“(i) injuries to back;

(ii) injuries to left buttock area and dorsum of left foot;

(iii) low back pain;

(iv) pain over left buttock and left groin region;

(v) pain over left leg;

(vi) mood deterioration;

(vii) adjustment disorder.”

13.Resulting from the injuries the appellant continues to suffer from pain in his lower back, left hip, left buttock, left groin and left leg and weakness and numbness of his left hip and left lower limbs.  These residual disabilities prevent him from sitting in an upright position or walking for any lengthy duration or from fully squatting down.  The persistent pain, for which medication is required, led to a deterioration of the appellant’s mood. 

14.The appellant seeks an award of general damages for pain, suffering and loss of amenities in excess of $450,000.  His pre-trial loss of earnings was claimed at $655,730 and his post-trial loss of earnings and MPF (assuming a working life to age 65) was claimed at $138,048.  With special damages and future medical expenses the total quantum of the appellant’s claim (excluding loss of earning capacity) came to $1,276,210.40.  From this must be deducted the amount of $522,764.62 already received by the appellant under the Employee’s Compensation Ordinance, Cap 282.

The judgment under appeal

15.The Judge noted that in the Statement of Claim the appellant alleged that (1) the workplace was small, narrow, congested and slippery; (2) water was dripping from the ice-making machine; (3) oil from the meat-mixing machine had accumulated on the floor; and (4) the greasy water from cleaning the lids mixed with the water from the ice-making machine and the oil from the meat mixing thereby causing the floor to be wet, greasy and slippery.  The Judge then dealt with these elements in turn.  As to the first element he said:

“Regarding (1), the evidence of the plaintiff shows that the working area was much bigger than what was pleaded in the statement of claim. In any event, it was never shown by the plaintiff how the size of the workplace contributed to his slip on the floor. He did not slip down in the 30 minutes when he was working there, and before the accident occurred. This shows that the area of the working place is not a contributing factor to his fall.

In his witness statement the plaintiff did not mention anything about (2) and (3). So there is nothing in his witness statement to support (2) and (3). Regarding (4), it was not pleaded in the statement of claim that the ham pieces from the lids of the container, and pork from the meat mixing machine, were greasy and contributed to the slipperiness of the floor.

Under cross-examination, the plaintiff said that the ham was oily, but not too oily. He said that there were lots of minced pork from the meat mixing machine left on the floor where they worked, and there was grease from this pork. His witness statement does not mention anything about grease from the meat mixing machine. It also does not mention anything about lots of greasy minced pork from the meat-mixing machine all over the place…

In conclusion his allegations are largely not supported by evidence.

The plaintiff said that when he arrived at the work place on 27.4.2008, there were water and oil stains and bits of meat or ham on the floor. He did not clean the place with the high pressure water gun before commencing his work. Obviously he did not perceive that the conditions of the working place constituted a risk to him. In fact, in his witness statement, he did not mention anything about the conditions of his working place when he commenced working there. So the conditions of the working place, when he commenced working, even if true, did not constitute a contributing factor to his fall.

He complained that his boots were seriously worn out…

For the first half an hour before the accident when he was working at that place, he did not slip.  So the alleged slipperiness of the working place and seriously worn out boots did not affect his balance.  After he had tripped on the water hose placed by him on the ground he lost his balance and fell.  If there had been a large amounts of greasy minced pork on the floor and if his boots had lost its efficacy, he should have slipped on the greasy minced pork before he tripped on the water hose.”

16.The Judge concluded that the cause of the appellant losing his balance was not the slipperiness of the floor but was simply due to the appellant tripping over the hose.  He tripped over the hose because of his own carelessness in not watching where he was walking.  He said:

“In my judgment, the plaintiff’s fall was due to his own carelessness by not watching the water hose. He stepped on it and fell. If he had been careful, he would not have stepped on the water hose he had put down on the floor a short moment ago. His fall was not caused by the defendant, but by himself. Due to the above reasons, I dismiss his claim.”

17.As a result of his conclusion on liability, the Judge did not consider the question of damages.

The grounds of appeal

18.There are five grounds of appeal.  The first ground of appeal complains that the Judge failed to properly consider and examine the liability of the respondent with regard to providing a safe working environment and adequate protection for the appellant given that the appellant was required to work on a wet and greasy surface.

19.The second ground of appeal complains that the Judge erred in concluding that the workplace was safe and the third ground of appeal asserts that the Judge erred in concluding that the wet and greasy floor surface was not a contributing factor to the appellant’s fell.  In advancing the third ground of appeal the appellant refers to the Judge’s apparent reliance on the fact that the appellant did not fall during the first 30 minutes of work to support his conclusion that the narrowness of the workplace area and the slipperiness of this area were not contributing factors in the appellant’s fall.

20.The fourth ground of appeal argues that the Judge erred in selectively preferring the evidence of Mr Tang, the respondent’s witness, when Mr Tang admitted he had not told the whole truth due to pressure from the respondent.

21.The fifth ground of appeal simply complains that the Judge erred in concluding that the appellant was 100% liable for the accident.

Discussion

22.A starting point to a consideration of the grounds of appeal is to recognize that the duties the respondent required the appellant to perform would inevitably cause the release of oily and greasy material.  This, after all, was the duty required of the appellant; namely to clean the lids by removing from them the grease and fatty substances deposited on them in the course of the production process.

23.That, in itself is not an inherently dangerous duty to perform.  Had the means of removal been one of washing the lids in a wash basin with the aid of detergents then the system of work would have been quite uncontroversial.  But neither of these means was employed.  Rather than using detergents, the respondent used a high pressure water gun, relying on the blast of water under pressure to remove the oil and greasy material from the lids.  Rather than using wash basins, the area for cleaning the lids was a section of tiled floor in which a drain was located.  It was intended that by hosing down the lids over the drain, the water, oil and greasy material would be flushed away through the drain.  But commonsense tells one that when a high pressure water gun is being employed to remove oil and greasy material, a certain amount of water and greasy material will be splashed around the working environment.  It is not all going to drain away neatly and cleanly through this circular drain of approximately 6 inches in diameter.  Inevitably the surrounding area will be affected by the use of the high pressure water gun.  Here, the surrounding area was an area of floor on which the appellant would be standing, walking and performing his employer’s duties.

24.It is not for us to comment on why the respondent chose to have an otherwise safe and mundane duty performed in the way it did.  But the reality is that by choosing this method it introduced an element of danger, of unsafeness, into the appellant’s system of work.  This is the context in which the accident happened.  The respondent accepts that to some extent this is so but maintains that the employer adequately addressed this issue by the provision of plastic safety boots.

25.Apart from a finding of fact that the appellant’s claim that the boots were seriously worn out was an exaggeration, the Judge does not deal with the unsafeness of the system of work and the efficacy and adequacy of the respondent’s provision of plastic boots to deal with the unsafe elements of that system of work.  He analyses this crucial issue quite superficially and simply dismisses it by arguing that if the appellant did not slip in the half hour before the accident then “the alleged slipperiness of the working place and seriously worn out boots did not affect his balance”.  He adopted an identical line of reasoning in respect of the narrowness of the working area. 

26.Because of the way the Judge analysed how the accident happened he seemed to have thought that the context played no part in the accident and that he could therefore, in effect, ignore it.  He analysed the accident by focusing solely on what caused the appellant to lose his balance and concluded that it was by tripping over the hose.  He then examined what caused the appellant to trip on the hose and concluded it was the appellant’s carelessness.

27.We see two problems with this analysis.  The first is the total lack of consideration of why the appellant put down the hose and the total lack of consideration of context in determining how the appellant came to trip over the hose.  The reason why the appellant put down the hose was in order to go to the aid of a colleague who was performing duties on behalf of the respondent.  In doing so the applicant must also have been performing duties for his employer.  Now context becomes relevant.  The appellant could only go to the aid of his colleague by placing the hose on the floor – there was no evidence that the hose was retractable or that it could be placed or hung above the level of the floor.  The distance between the meat mixing machine and the water gun machine was about 8 feet but the length of hose of the water gun was about 20 feet.  By having to place the hose on the floor a potentially hazardous situation was then created.  All of this is, of course, happening over just a few seconds when the attention of the appellant may well have been more on the circumstances of his colleague rather than on his own personal circumstances. 

28.Whether this explains the accident we cannot say but it is a possible scenario raised by the evidence which needed to be addressed by the Judge.  Relevant to such a scenario is the width or narrowness of the corridor in which the appellant was working as that may have forced him to step over the hose once he had placed it on the ground, rather than walk around it.  The other contextual element of the slipperiness of the floor has also to be considered when determining how the accident happened.  The slipperiness of the floor necessarily gives rise to questions such as did the appellant forget he had put the hose on the floor and inadvertently step on it or was he trying to step over it?

29.To describe the appellant as tripping on the hose is not helpful for it merely means that the appellant came into contact with the hose which caused him to lose his balance.  To characterize what happened as “tripping” tends to place emphasis on the element of the loss of balance at the expense of the element of the physical contact with hose.  The finding of fact by the Judge is that the appellant stepped on the hose.  If, as the Judge seems to have found, the appellant stepped on the hose then why did that action cause him to lose his balance?  Was it because the hose moved under his feet because the floor was wet and slippery?  If the floor had been dry and not slippery would merely stepping on the hose have caused the appellant to lose his balance?

30.The second problem we see with the Judge’s analysis is that he failed completely to consider why the appellant was unable to regain his balance.  This again is an issue which was clearly raised by the context.  Why was it that the appellant was unable to recover his balance and did any of the contextual elements contribute to his inability to do so?

31.As a result of the Judge’s failure to address these issues his analysis and conclusions as to how the accident occurred cannot stand.  It is not necessary for us to consider the other grounds of appeal.  Because of the inadequacies in the Judge’s judgment and the flaws in his analysis of the accident and the impact of those flaws on his conclusions in respect of it, we allow the appeal, quash the order of the Judge and order the case to be retried before another judge. We make an order nisi that the costs of the appeal be awarded to the appellant. The Appellant’s own costs be taxed in accordance with legal aid regulations.  The costs of the trial will become costs in the retrial.

32.Because the possibility exists that, should the plaintiff ultimately be successful, his damages may not exceed the employees’ compensation monies he has already received, the better course on the retrial is that the issues of liability and quantum should not be split but should be dealt with in the same proceeding.  We heard submissions from counsel on the appropriate order a trial judge should make when finding liability established but assessing damages at less than the employees’ compensation already received.  However, counsel did not have the opportunity to research the issue and provide us with the benefit of full and considered submissions on it.  In that situation, and it being unnecessary for us to address this issue for the purpose of resolving the appeal, we shall say no more about it.

Ms Jennifer Tsui, instructed by Cheng, Yeung & Co, assigned by DLA, for the plaintiff (the appellant)

Mr Ashok K. Sakhrani, instructed by Munros, for the defendant (the respondent)