HKCFI 356
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO. 999 OF 2015
||LEUNG HOI WAI (梁凱慧)
||PO LEUNG KUK
|Before: Deputy High Court Judge Kent Yee in Court
|Dates of Hearing: 18, 19 & 21 December 2017
|Date of Judgment: 14 February 2018
1. The plaintiff, Madam Leung, was an instructor employed by the defendant, Po Leung Kuk (“PLK”) at the Pokfulam Rehabilitation Centre (“the Centre”). In the course of her employment on 31 May 2013, she injured her right big toe when she was handling a folding table at the Centre. For these injuries, she claims damages from PLK.
2. Madam Leung was born in 1979 and was 34 years old at the time of the accident and 38 at the time of the trial of this action.
3. The following matters mostly pleaded in the Statement of Claim or evidenced by non-controversial documents are not in dispute and are set out here by way of background.
4. Madam Leung completed her tertiary education. She started her employment with PLK on 30 April 2012 as Instructor (I) at the Centre. She was primarily responsible for rendering 24-hour residential care service to the residents of the Centre (“the Residents”) by shift duties.
5. The Residents are mentally retarded adults ranging from intermediate to serious grades. There were 46 of them, 23 males and 23 females, at the material times. As an instructor, Madam Leung had to oversee their activities at the Centre, which were usually held in the activity room. The Residents received training in the activity room too.
6. The activity room has another function. It can be turned into a dining area for the Residents with ten odd small folding tables and tens of plastic chairs set up. There is a door in the activity room leading to a pantry. For the purposes of serving meals to the Residents, there are two bigger folding tables (“Two Large Folding Tables”) placed right outside the pantry against the wall of the activity room. Dishes, rice and soups could be placed on the Two Bigger Folding Tables and they, as with all other small folding tables, are stored inside the pantry when they are not in use. One of them (“the Table”) was involved in the accident.
7. The pantry could be hazardous to the Residents given the existence of dangerous articles inside and its door is operated by an electronic lock (“the Lock”). The Lock became out of order in the very morning of the date of the accident and the door of the pantry could not be closed and locked automatically. To prevent the Residents from entering the pantry, as a stopgap measure, one of the caretakers of the Centre placed the Table in its upright position outside the pantry. As with all other folding tables used at the Centre, it was of an ordinary type and consisted of a square wooden surface and foldable metal legs with a supporting frame. The Table fell onto Madam Leung and landed on her right foot when she touched it.
8. Madam Leung was sent to Accident & Emergency Department (“AED”) of Queen Mary Hospital (“QMH”) shortly after the accident. X-ray examination revealed that her right big toe was fractured.
Madam Leung’s case of the accident
9. All what Madam Leung says in her pleading about the occurrence of the accident, to which there was no other witnesses, is as follows:
(1) On 31 May 2013, she was overseeing the activities at the activity room of the Centre.
(2) Some residents were walking or running around inside the activity room.
(3) She discovered that one staff member of PLK had placed the Table at the doorway of the pantry in order to block the residents from entering the pantry.
(4) The Table with its legs folded was placed in an upright position. She feared that the Table would in such a position cause hazard to the residents. She attempted to move it away.
(5) When she was just touching the Table, it slipped on the floor and fell towards her. It fell and hit onto her right foot. She was injured as a result.
Madam Leung’s evidence
10. First, in her witness statement, her account of the accident is as follows.
11. At the material time, the Residents finished their lunch and they stayed in the activity room to spend their leisure time. She found that the Table was placed outside the pantry whilst the door of the pantry was left open completely.
12. Standing inside the activity room, Madam Leung could see that there were two instructors in the pantry, namely, one Ms Tang and Ms Fong. Ms Fong slightly pulled away one side of the Table from the pantry when she got out the pantry without restoring it to its original position. Madam Leung tried to do so for her to prevent any of the Residents from getting in touch of the Table inadvertently and getting injured as a result.
13. In doing so, she was standing outside the pantry. When she intended to use her hands to lightly touch the Table, it fell downwards and crushed her right foot. She could not avert the same in time.
14. Madam Leung makes an important clarification in her witness statement. In her pleading, she avers that the Lock had been out of order for some days before the accident. In her witness statement, she clarifies that the Lock stopped functioning properly in the very morning of the date of the accident and PLK had already made arrangement for the repair of the Lock before the accident.
15. At the trial, under cross-examination, she gave some material background information and further elaborated her account of the accident.
16. First, she explained that the Two Large Folding Tables were normally placed outside the pantry during meal times. The staff members of PLK would place the dishes, rice and soup, if any, onto these two Tables and the Residents would line up near them for distribution of their portions of food and drinks there.
17. These Two Large Folding Tables and all other smaller folding tables used by the Residents are normally stored at the pantry. During meal times, they would be unfolded and placed in the activity room. The Residents use the folding tables and plastic chairs when taking their meals. When they finish their meals, all the folding tables would be returned to the pantry whilst the plastic chairs would be rearranged in accordance with the activities to be carried out after their meal time.
18. All of the staff members of PLK including its caretakers and instructors would assist in folding/unfolding the folding tables and returning them to the pantry after use and being cleaned by the cleaners in the activity room. Madam Leung was no exception. As part of the training of their sense of responsibility, under the supervision of the staff members and instructors, those younger and stronger Residents are often asked to assist in the process as well. In doing so, they were invariably accompanied by the staff members because they would never be allowed to enter the pantry on their own. Madam Leung highlights that there were dangerous things such as water boilers, scissors and cooking utensils in the pantry and the Residents should never be allowed to tamper with such items.
19. As regards the accident, at around 1:00 p.m., Madam Leung had finished her lunch and was in the activity room to assist her colleagues in distributing the medicine among the Residents. The Residents had finished their lunch too and were having their free time in the activity room.
20. After handling the medicine, Madam Leung wanted to wash her hands in the pantry. She then saw Ms Tang and Ms Fong staying in the pantry with the Table blocking its entrance. Ms Fong left the pantry and she pushed the left side of the Table a bit further away from the pantry to allow herself more room for easy departure from the pantry. However, she did not push the Table back to its original position.
21. Upon seeing this, Madam Leung worried that the Table might be a hazard to the Residents and that the Residents might enter the pantry with ease. Thus, she went up to the Table facing the pantry and intended to push the Table back to its original position.
22. Madam Leung could not tell precisely how she handled the Table before it hurt her right big toe. She could only repeatedly say that she only had the slightest touch of the Table with both hands and before she...