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Lam Wing Yee v City Super Ltd

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date05 November 2019
Neutral Citation[2019] HKCFI 2507
Judgement NumberHCPI523/2016
Subject MatterPersonal Injuries Action
CourtCourt of First Instance (Hong Kong)
HCPI523/2016 LAM WING YEE v. CITY SUPER LTD

HCPI 523/2016

[2019] HKCFI 2507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 523 OF 2016

________________

BETWEEN

LAM WING YEE Plaintiff

and
CITY SUPER LIMITED Defendant

________________

Before: Deputy High Court Judge Raymond Leung SC in Court
Dates of Hearing: 18, 20 and 24 June 2019
Date of Judgment: 5 November 2019

________________________

JUDGMENT

________________________

1. This is the trial of the Plaintiff’s action herein against the Defendant for damages arising from the back injuries she sustained in a work accident involving manual handling, which befell her on 21 June 2013 (the “Accident”).

THE PLAINTIFF

2. The Plaintiff was born in Hong Kong on 15 June 1987. She received education up to Form 7. Apparently, after graduation in 2007, she worked as a customer service staff in a shopping mall for three months.

3. Thereafter, she worked for a few years in various companies as a door-to-door salesperson for telecommunication or cable television services. In early September 2012, the Plaintiff was in-between jobs.

4. By a contract dated 4 September 2012, she was employed as a “Sales Assistant” by the Defendant. On 6 September 2012, she started work at the Defendant’s supermarket at Times Square in Causeway Bay (the “Supermarket”).

5. Despite her job title, she was in fact not involved in sales. Instead, for 5 ½ days per week, she worked from midnight to 10 am on the following day to replenish and tidy-up the goods displayed on the shelves of the Supermarket. She earned a basic salary of HK$7,400 per month plus various allowances.

6. Since 1 November 2012, she secured an additional job with HKT Services Limited as a salesperson of telecommunication services earning a guaranteed pay of HK$6,000 per month plus commission, bonus and various allowances. She worked from about noon to 10 pm in this job.

7. Since early 2013, the Plaintiff has moved to and lived in a new public rental housing unit in Shek Kip Mei with her younger sister and mother. She has other older half-siblings, who are married or independent.

8. It is not disputed that about one year prior to the Accident (ie mid-2012), the Plaintiff had incurred debts owed to various banks to the tune of some HK$100,000. She explained that she spent the borrowed money on shopping, clothing items and renovation of the new home.

9. Remarkably, the Plaintiff attained black belt in both Karate and Taekwondo winning many trophies in the past. She was a member of the Hong Kong Karate Team and a qualified coach in Taekwondo. As observed in Court, she is a well-built person.

THE ACCIDENT

10. The Accident was investigated by the Labour Department. A declaration was obtained from the Plaintiff on 19 November 2013 (the “Declaration”) and an Accident Investigation Report was compiled on or about 6 December 2013 (the “AIR”).

11. The Plaintiff is the only witness giving oral evidence. It is not disputed that she attended work at the Supermarket as usual around midnight on 20 June 2013 and she finished work at about 10:00 am on the following day (ie 21 June 2013). She worked with a team of four to five co-workers under the supervision of one “Ah Fey”.

12. They were responsible for disassembling some 10 pallets of various types of goods to replenish the shelves of the Supermarket. Each pallet of goods would be labelled or marked with the following code as appropriate:

(a) “JC” referring to Japanese snacks (such as cakes and potato chips);

(b) “JR” referring to Japanese soy sauce, ramen and southeast Asian seasoning;

(c) “GW” referring to rice, vinegar, oil, sugar, cereal, flour, spaghetti, canned food, etc.

(d) “GA” referring to rice, baby food (excluding milk powder);

(e) “CT” referring to coffee, baby food and American potato chips; and

(f) “BB” referring to beverages of various sorts.

13. The pallets of goods were delivered from the Defendant’s warehouse to the Supermarket by logistics staff. Standardized plastic boxes belonging to the Defendant each measuring 2 feet (length) by 1.5 feet (width) by 1 feet (height) were used to hold loose items of goods by category, which were stacked onto the pallets also by category.

14. Where the goods came in cartons, they would be stacked on top of the plastic boxes in a pallet. To avoid dislodgement during transportation, each pallet of goods would be secured with plastic stretch films. The pallets of goods were delivered to and placed at an unloading area (the “Unloading Area”) near the service lift of Times Square just outside the shop space of the Supermarket.

15. In the main, the Supermarket was divided into different aisles with shelves on either side (see sketch attached to the Declaration). Due to constraint of space, the pallets could not be navigated around the shop premises, even with the use of a pallet jack.

16. Therefore, the goods in each pallet had to be disassembled at the Unloading Area, which entailed the following procedure:

(a) workers (like the Plaintiff) would work in pairs;

(b) the plastic film of the pallet would be removed by using a cutter;

(c) a flat trolley similar in size (in terms of length and width) as a standardized plastic box would be placed next to a pallet;

(d) an empty plastic box would be put on the flat trolley for the purpose of minimizing the need for workers to bend his or her back, while moving a load of goods in a plastic box from the pallet to the flat trolley;

(e) the worker(s) would check the content of the plastic box to be moved in order to assess its weight;

(f) a plastic box of goods would be moved by two workers (holding onto the grip on either end lengthwise) from the pallet and put on top of the empty plastic box placed on the flat trolley;

(g) where appropriate, another plastic box of goods might be stacked on top of the one referred to in (f) hereinabove;

(h) the workers would then move the flat trolley (with plastic box(es) in one stack as aforesaid) to the relevant shelf or shelves for replenishment.

17. The Plaintiff said she first worked from midnight to about 3:00 am, when she had a meal break. She then carried on until around 7:00 am with nothing untoward and the goods handled up to that point were of the “JC” and “JR” categories, which were not heavy.

18. At around 7:00 am, she was working in tandem with Madam Hung Ka Po (“Madam Hung”). Immediately before the Accident, they were about to move a plastic box of “GW” goods (the “Box”) from a pallet onto the empty box on a flat trolley. Upon opening the Box for inspection, she knew that it was a heavy piece. There is no dispute that the Box weighed about 20 to 30 kg.

19. Between the Plaintiff and Madam Hung, they moved the Box onto the empty box sitting on the flat trolley. The Plaintiff was holding the grips of the Box at one end and Madam Hung was holding the grips at the other end. Suddenly she felt pain in her back. Despite the pain, she continued with moving the Box from the pallet onto the flat trolley for fear that Madam Hung might get hurt if she had let go.

20. The Plaintiff claimed that Madam Hung also experienced pain in her back (see paragraph 8 of the Plaintiff’s Witness Statement and paragraph 3 of the Reply). Therefore, they both took a rest inside the shop premises and then continued with the work until about 10 am. Before knocking off for the day, the Plaintiff told “Ah Fey” that they both had injured their back but he did not show any response.

21. According to the Declaration, the Plaintiff attended “Conduct Chinese Medicine Clinic” in Wanchai together with Madam Hung immediately after work on 21 June 2013 to see Dr Tsang Wing Yee, a Chinese Medicine Practitioner (“CMP”). It is however not clear from the evidence whether Madam Hung also received medical attention.

22. The Plaintiff alleged that she was diagnosed with back injury (see paragraph 8 of the Plaintiff’s Witness Statement) but the medical certificate issued by Dr Tsang (CMP) on 21 June 2013 only shows that the Plaintiff had “back pain” for which she was recommended 1 ½ days sick leave (from 21 June 2013 to 22 June 2013) and light duties. There is no mention of any work injury or accident.

THE PLAINTIFF’S CASE

23. The Plaintiff’s case is pleaded on the basis of negligence and/or breach of statutory duty and/or breach of contract of employment with following particulars (see paragraph 10 of the Statement of Claim):

“ (a) Failing to inform, advise, instruct and/or educate the Plaintiff of the danger and risk of injury of moving and/or lifting plastic boxes and/or heavy items with her female colleagues [Madam Hung];

(b) Failing to give the Plaintiff proper and adequate instructions, training and supervision on the safety method and procedure for carrying out her work and duties;

(c) Failing to supervise properly at all;

(d) Failing to provide or maintain a safe and proper system of work for the Plaintiff in carrying out her duties at the Supermarket in a safe and proper manner;

(e) Failing to provide a safe and/or proper system for the transport or movement of plastic boxes which were heavy in weight;

(f) Failing to ensure that there were sufficient warning signs and/or manpower to guard against danger created by the moving and/or lifting of heavy items or plastic boxes by two female workers [the Plaintiff and Madam Hung];

(g) Failing to instruct, arrange and supply sufficient manpower to assist the Plaintiff in carrying out her duties;

(h) Failing to take all reasonable care and/or precautions to ensure that the Plaintiff was reasonably safe while carrying out her duties at the Supermarket;

(i) Causing and/or permitting and/or allowing the...

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