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HCPI 794/2016
[2019] HKCFI 1035
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
PERSONAL INJURIES ACTION NO 794 OF 2016
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BETWEEN
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TSANG CHUNG MING |
Plaintiff |
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and
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CARITAS–HONG KONG |
Defendant |
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| Before: |
Deputy High Court Judge MK Liu in Court |
| Date of Hearing: |
2 – 3 & 8 April 2019 |
| Date of Judgment: |
18 April 2019 |
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JUDGMENT
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INTRODUCTION
1. In these proceedings, the plaintiff sues the defendant for damages in respect of the personal injuries sustained by him in an accident (“the accident”) occurred on 11 May 2015 in Caritas Jockey Club Lai King Rehabilitation Centre (“the Centre”). At that time, the plaintiff was a chef employed by the defendant working in the kitchen of the Centre (“the Kitchen”). The plaintiff claims that he sustained “serious injury to his waist” [1]while taking out a container filled with steamed rice from a steaming machine (“the Steamer”).
2. Both liability and quantum are in dispute in these proceedings.
THE PLAINTIFF’S CASE
3. The plaintiff’s case was that at the time of the accident, he was a chef employed by the defendant and working in the Kitchen. On 11 May 2015, he and his colleague Mr Leung Man Shing (“Leung”) were on duty. There were 6 steamers in the kitchen, each having 6 cabinets. Rice would first be placed in containers, and the containers would be placed inside the steamers for cooking. Each steamer could hold 12 containers with rice. The plaintiff was responsible for preparing meal for 500 persons on that date, and it would be necessary to use 15 containers to cook the rice.
4. The plaintiff claims that he sustained personal injuries in the accident in the way as pleaded in §3 of the statement of claim:
“ 3. At the material time, the Plaintiff was preparing dinner for about 500 patients at the Centre with another chef and was required to take out stainless steel rice containers measuring 2 feet in length, 1.5 feet in width, 5–6 inches in height and weighing about 20–30 pounds (‘the Containers’) from a rice steaming cabinet measuring 6 feet in height carrying 12 Containers (‘the Steamer’). Whilst the Plaintiff was taking out a Container of hot steamed rice from the uppermost part of the Steaming cabinet, he sprained his waist (‘the Accident’).”
5. The plaintiff says that the defendant is solely responsible for the accident and is liable to pay damages to him. The particulars of the alleged wrongdoing of the defendant are pleaded in §6 of the statement of claim:
“ 6. The Accident was solely caused by:-
i. the negligence on the part of the Defendant, its servants and/or agents and/or breach of implied terms of employment contract between the Plaintiff and the Defendant; and
ii. breach of statutory duty and/or breach of common duty of care on the part of the Defendant, its servants and/or agents.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
(1) Failing to make a suitable and sufficient assessment of all manual handling operations to be undertaken by its employees, in particular the Plaintiff;
(2) Failing to take appropriate steps to reduce the risk of injury to its employees, in particular the Plaintiff;
(3) Failing to provide its employees, in particular the Plaintiff,with a safe system of work, safe plant or equipment, adequate instruction and supervision;
(4) Failing to take any or any sufficient and/or adequate measure or precaution to ensure that the Plaintiff would be reasonably safe while he was performing the task;
(5) Failing to provide any or any adequate safety training to its employees, in particular the Plaintiff;
(6) Failing to provide enough staff to assist;
(7) Exposing the Plaintiff to a foreseeable risk of injury; and
(8) Failing in all the circumstances to take any or any adequate care for the safety of the Plaintiff.”
6. The plaintiff himself has given evidence in support of his case at trial.
THE DEFENDANT’S CASE
7. The defendant denies that the accident was caused by the defendant’s negligence or breach of any duty on the defendant’s part. Further, the defendant claims that the plaintiff himself was contributorily negligent, particulars of which are as follows[2]:
(1) Failure to adopt a proper and suitable posture when handling the Container;
(2) Failure to maintain a firm footing when handling the Container;
(3) Failure to synchronise his body movement in a safe manner when handling the Container;
(4) Failure to utilise the standing platform provided when removing the Container from the Steamer;
(5) Failure to pay any or any adequate attention to the working environment at the material time;
(6) Failure to exercise any or any proper precautions for his own safety under the circumstances.
8. The defendant has filed witness statements made by the following persons:
(1) Ms Siu Wing Sze (“Siu”), Head of Human Resources in the defendant;
(2) Ms Lee Shuk Yi (“Lee”), Superintendent of the Centre; and
(3) Leung.
9. Since the parties have reached some agreement on quantum, the parties agreed that it would not be necessary to call Siu to give evidence in the trial. The defendant has called Lee and Leung to give evidence.
THE PRINCIPLES
10. In order to succeed in a civil litigation, a claimant has to set out his case on pleadings with sufficient clarity and to prove the pleaded case with satisfactory evidence.
11. Issues are defined by pleadings. One cannot slip in an unpleaded issue by saying that there is evidence on the issue. That has been made abundantly clear by the Court of Final Appeal in Kwok Chin Wing v 21 Holdings Ltd [3], in which Ma CJ said:
“ 21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues: Wing Hang Bank Ltd vCrystal Jet International Ltd [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Ltd v Crystal Jet International Ltd at 799 [6(2)]:
(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.
22. … one does not sift through the evidence adduced in a trialin the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings.” (Emphasis added)
See also Chan Kong v Chan Li Chai Medical Factory (Hong Kong) Ltd [4], [15] and [16].
12. Apart from setting out a clear case on pleadings, the plaintiff also bears the burden to adduce satisfactory evidence to prove his pleaded case. He who asserts must prove[5]. In Wat Kwing Lok v The Kowloon Motor Bus Company (1933) Ltd [6], Sakhrani J said at [17]:
“ The mere fact of the occurrence of the accident is not sufficient to give rise to a presumption of negligence on the part of the defendant. The burden of proof is on the plaintiff to show on a balance of probabilities that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault. If, and only if, the plaintiff proves that the unusual event is more consistent with fault on the part of the defendant than the absence of fault, the evidential burden then shifts to the defendant to show, on a balance of probabilities, that the accident happened without negligence on its part.”
13. From time to time, it has been argued in personal injuries cases that employers have failed to provide safe systems of work to their employees. Whether a particular employer has the duty to do so depends upon the facts of that particular case, including the task required to be performed by the employee is a simple one or not. In respect of simple tasks, it would be reasonable for the employer to expect that the employee would exercise common sense to perform the task without the need for the employer to give specific instruction or advice how the task should be performed. This has been made clear by the Hong Kong Court of Appeal’sdecision in Fong Yuet Ha v Success Employment Services Ltd [7], in which Kwan JA (as she then was) said:
“ 17. There is no quarrel with the principle that an employer’sduty to provide a safe system of work is a personal and non- delegable duty. It was not the holding of the judge that where an employer is under an obligation to provide a safe system of work, such a duty could be shifted to the employee so that the employee could be expected to discharge this duty of providinga safe system of work for the employer. The general principle on the duty to prescribe a safe system of work may be found in this...
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