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Cheung Wai Kar v Dragon Kings Development Ltd T/a Famous (Dragon Kings) Restaurant

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date23 December 2019
Neutral Citation[2019] HKCFI 3114
Year2019
Judgement NumberHCPI880/2017
Subject MatterPersonal Injuries Action
CourtCourt of First Instance (Hong Kong)
HCPI880/2017 CHEUNG WAI KAR v. DRAGON KINGS DEVELOPMENT LTD t/a FAMOUS (DRAGON KINGS) RESTAURANT

HCPI 880/2017

[2019] HKCFI 3114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 880 OF 2017

____________

BETWEEN
CHEUNG WAI KAR Plaintiff

and
DRAGON KINGS DEVELOPMENT LIMITED Defendant
trading as FAMOUS (DRAGON KINGS) RESTAURANT

____________

Before: Deputy High Court Judge Sherrington in Court
Dates of Hearing: 11 – 12 November 2019
Date of Judgment: 23 December 2019

_______________

JUDGMENT

_______________

1. This is a personal injuries action. The plaintiff (“P”) was employed by the defendant (“D”) as a substitute chef working in the kitchen of D’s restaurant at Shop 61, G/F, Melody Garden, No 2 Wu Chui Road, Tuen Mun, New Territories, Hong Kong (“the restaurant”). P was injured on 6 September 2016 when cleaning the metal filter of the exhaust hood (“the accident”). Both liability and quantum were in dispute at trial.

THE ACCIDENT

2. P’s evidence was that he had been a chef for 30 years and he was employed as a substitute employee to cover for Mr Chan Hau Ku, a former colleague who recommended him for the role when he himself needed to be away for two weeks for a medical procedure. P accepted on cross-examination that he had never been told he would have longer term employment than this with the defendant.

3. Sometime on the evening of 6 September, P says he was instructed by his supervisor, one Ah Sai, to clean the metal filter of the exhaust hood in the kitchen, and since this was 1.8 – 2 meters from the ground, he had to climb onto the kitchen stove to clean it. He said the filter was covered with grease and his hand slipped with the result that his right thumb was cut on the sharp edge of the filter and consequently he lost his balance and fell to the ground sustaining various injuries, although it is only the injury to his thumb with which these proceedings are concerned.

THE PLAINTIFF’S EVIDENCE

4. I turn then to P’s evidence at trial. Whilst his written statement was coherent, his evidence under cross-examination and re-examination was confused, inconsistent at times, and moreover he seemed to me willing to say whatever he thought would advance his case. Mr Sham for the plaintiff sought to deflect any criticism on this basis by suggesting that P as unsophisticated and could not understand the questions being put to him, but this was in stark contrast to his evidence in chief, and in any event, his answers to the questions put to him by his own counsel were equally inconsistent and therefore unreliable. Accordingly, I found it difficult to place any reliance on his oral testimony.

5. It was, however, clear from the documents that P had worked for eight days prior to the accident, starting each day at about 2 pm and finishing at about midnight.

6. There was no clear evidence as to when Ah Sai had given P the instruction to clean the filter and hood. It must have been before 10:45 pm when the accident happened, but P gave inconsistent responses about this and indeed insisted both on cross-examination and re-examination that the instruction had been given to him at 11 pm, which clearly cannot have been the case. It was clear that it had been somewhat earlier and the inference I drew was, as Mr Ho for the Defense submitted, that the cleaning operation took place when the cooking for the evening was complete.

7. P took issue with this, and said that cooking continued until 12 midnight, when the restaurant closed. But I found his evidence on this difficult to accept, given that he said he climbed on the stove to do the cleaning and it is difficult to see how he could have done this whilst there was still cooking taking place, or indeed why he would attempt to clean the hood before the cooking was finished.

8. It was P’s evidence that it was not part of his job to clean the kitchen before leaving work. He said in his statement that Ah Sai did not provide any instructions on how to clean the hood or any tools to assist him in cleaning the hood. He said it was hard to seek instructions from Ah Sai because when he came to carry out the task Ah Sai was in the front of the restaurant and the only colleague in the kitchen, one Mak Tat Ming, was busy dealing with the chopping boards which also suggested to me that the cooking was over for the evening; as a result he says he did not seek anyone’s assistance.

9. When he was cross-examined about the necessary equipment he said that he did not ask about them because he thought he could do the task without any. In his evidence in chief he said he intended to dismantle the hood before washing it, which suggested he had a familiarity with such operations, but on cross-examination, he said he did not know what his next step would be after dismantling it because he had not thought about it.

10. P confirmed therefore that he neither sought assistance nor asked for further instructions from either Ah Sai or Mak Tat Ming.

11. P said that if there was a ladder or chair available, he would not have needed to climb onto the stove, but he denied this was because that was inherently dangerous. Indeed he went further and said it was normal and safe to climb upon a stove.

12. He said he did not pay attention to whether there were any chairs in the restaurant, and when questioned further about this he said that he did not see any chairs and he thought all the seats were booth seats.

THE DEFENDANT’S EVIDENCE

13. By way of response to P’s allegations, the defendant called two witnesses who were shareholders in the defendant but neither of whom was present at the relevant time, and so neither was in a position to speak to the circumstances surrounding the accident itself. Neither Ah Sai nor Mak Tat Ming gave evidence.

14. Mr Cheung Yat Man (“CYM”) gave evidence that P was employed as a substitute chef, because the regular chef, Mr Chan Hau Ku had taken leave of absence for the purpose of a medical procedure. CYM confirmed that P had been introduced to the defendant by Mr Chan. Accordingly, the defendant employed P on 28 August 2016 at a daily wage of HK$750. CYM produced the relevant payroll slip to support these payments.

15. CYM’s evidence was that the restaurant was small in scale, serving no more than 60 persons, and about half of these seats were fixed, the other half being chairs, some with backs and some without. Because of its small size, he said, there is no real demarcation of labour in the kitchen. All of the cooking was carried out by Mr Chan and so CYM said he had specifically required a substitute employee who was experienced and would be able to work unaided. His further evidence was that the cleaning of the kitchen was invariably handled by the kitchen staff themselves and not by wait-staff or dishwashing staff and that accordingly P should have had the necessary experience to carry out the cleaning tasks safely.

16. CYM’s evidence was that the blades of the hood were detachable and because they were only two meters high, a standing male could reach up with his arms aloft to detach them. He said that in any event there were chairs and a ladder available. He also said that the kitchen was equipped with rubber gloves and work gloves for the employees to use to protect their hands when performing tasks such as the cleaning of the hood.

17. His evidence was that the blades for the hood could have been cleaned using the hose connected to the faucet in the kitchen and left on the floor overnight to dry. These would then be replaced the following morning.

18. The remainder of the hood could not be detached but did not get as greasy and so the usual practice was for an employee to use a long handled brush to clean the surface of the frame of the hood with detergent. This would then dry overnight.

19. CYM produced photographs of the long handed brush and the detergent which was available in the kitchen, as well as the rubber boots and gloves which were also available for use.

20. His evidence was that it should be obvious as a matter of common sense to anyone that one should not stand or kneel on a stovetop because it would be greasy with food residue and easy therefore to slip. In addition, he said, it was connected to a gas pipe.

21. The defendant’s second witness was CYM’s son, Mr Cheung Chin Kiu (“CCK”). CCK was called to the restaurant after the accident and drove P to Tuen Mun Hospital. He says he asked P about the accident on the way to the hospital and he reported his conversation to CYM and this formed the basis of the Form 2 Notice, which was prepared under the Employees’ Compensation Ordinance (Cap 282).

22. CCK’s further evidence was that when he was driving P to Tuen Mun Hospital, there was a strong smell of beer in the car and he said he believed that this came from P. Initially his evidence was that he had been alone in the car with P, and as he had not been drinking himself, he believed the smell came from P, although he corrected this statement when giving evidence to say that he was accompanied at the time by a friend, and he made no claim as to whether his friend had been drinking or not so that I can place no reliance on his original statement that he believed that the smell came from P. He pointed out that there was a clear sign on the kitchen door prohibiting smoking and the drinking of alcohol.

THE PLAINTIFF’S CLAIM

23. P relies on the following causes of action against the defendant:

(1) breach of contract of employment;

(2) breach of statutory duties under the Occupational Safety and Healthy Ordinance (Cap 509) (“OSHO”);

(3) breach of statutory duties under the Occupiers Liability Ordinance (Cap 314) (“OLO”); and

(4) negligence.

24. Mr Sham submitted that it is trite that once an...

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