Wong Sau Lai v Cathay Pacific Airways Ltd

HCPI 111/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 111 OF 2002

____________

____________

_______________

J U D G M E N T

_______________

Common law action

1. The Plaintiff was born on 27 July 1970. She used to work as a legal secretary prior to joining Cathay Pacific as a cabin attendant in 1994. She remained in that rank until her resignation, which took effect on 11 January 2003. On 17 November 2000, she was on duty as a cabin attendant serving passengers in the aft "J" cabin (a business class cabin) on board flight no. CX500, a Boeing aircraft B777-300 operated by the Defendant en route from Hong Kong to Narita Airport in Tokyo, Japan. Whilst working in the aft galley in the business class cabin of the aircraft during cocktail service time, a drawer containing bottles of drinks fell on her right knee. It is the Plaintiff's case that the injury to her right knee prevents her from returning to her job as a cabin attendant. Therefore, after nine subsequent flights between November 2000 and March 2001 which she undertook with alleged difficulty, she was on sick leave continuously. Despite treatments, her condition did not improve but became permanent. The accident resulted in employees' compensation proceedings (DCEC 1004/2001) which were eventually heard before Her Honour Judge CB Chan in early December 2002. Shortly after completion of the trial and while judgment was pending, the Plaintiff put in her notice of resignation which, as mentioned before, took effect as from 11 January 2003.

2. On 17 January 2003, the learned district judge handed down judgment in respect of the employees' compensation claim. Amongst the several issues decided in those proceedings, the learned judge found as a fact that the Plaintiff "is not fit nor suited for the work of a cabin attendant" as a result of the injury to her right knee that she sustained in the accident in November 2000 (paragraph 23 of the judgment). The Plaintiff eventually found a job as an administrative assistant on 2 June 2003 at a monthly salary of $8,000, having failed to find any job in the legal secretarial field despite many applications.

3. This common law action, which was commenced in 2002, deals with the Plaintiff's claim for common law damages in respect of the accident in November 2000. I have heard, in the course of 9 days of trial, evidence from the Plaintiff as well as quite a few factual witnesses from the Defendant comprising a number of serving cabin crew of various ranks and people in charge of administration, employee services, service equipment logistics and operations and medical services, apart from 2 orthopaedic experts - one from each side. Liability as well as quantum are hotly in dispute. I shall deal with them in turn.

Liability

4. According to the evidence which is not really in dispute, the flight in question was manned by 10 odd cabin crew led by an In-flight Services Manager (ISM), a Ms Karen Young. So far as the aft business class cabin in which the Plaintiff worked at the material time is concerned, it was the responsibility of 3 cabin crew members, namely, a senior purser, a flight purser (who is lower in rank than the senior purser) and a cabin attendant (who is lowest in rank) - i.e. the Plaintiff. Although the guidelines issued by the Defendant suggest otherwise, I have no doubt that in practice, it was the senior purser and the cabin attendant who were responsible for cocktail service, which took place shortly after take-off, and it was the flight purser who was responsible for taking care of the meals, which would be served after the cocktail service. In my judgment, nothing really turned on this arrangement. Moreover, according to the evidence, and I so find, the Plaintiff as the cabin attendant was assigned the responsibility of taking care of the two bar carts in the aft galley (or galley no. 2) in the business class cabin, for the purpose of serving cocktails.

5. The bar carts in question were so-called half-size bar carts. At trial, I have been shown a similar bar cart. The bar cart, rectangular in shape, is about 4-foot tall. It is movable with wheels at the bottom. There are brakes to "park" the bar cart. When one opens the door of the bar cart which could only be opened on one side, one would find that the inside of the bar cart is divided more or less equally into the upper compartment and the lower compartment, separated by a horizontal panel fixed on the insides of the 2 vertical side panels and the vertical back panel. Drawers, as they are called, are placed inside both compartments. There are rails or tracks on the insides of the two vertical panels, and there are corresponding "protrusions" along the side edges of the drawers to fit the tracks or rails (with the exception of the "blue drawer" - see below). But apart from the rails or tracks, there are no stopping mechanisms installed either on the insides of the bar cart or on the drawers to prevent the drawers from falling off the bar cart if they are excessively pulled.

6. The present accident related to a so-called blue drawer. It is so called because it is blue in colour whereas the rest of the drawers inside the bar cart are greyish in colour. Apart from the colour, the blue drawer is different from the other drawers in terms of design in two material aspects. First, it is taller (about 6 inches in height), and secondly, the side protrusions of the blue drawer are along the bottom edges of the drawer rather than along the top edges. Because of the positions of the tracks or rails, and because of the location inside the bar cart where the blue drawer is placed (and was placed at the time of the accident), there are no corresponding tracks or rails inside the bar cart to fit the protrusions of the blue drawer. (Had there been side protrusions similar to the grey drawers along the top edges of the blue drawer, there would have been corresponding rails or tracks on the insides of the two vertical panels of the bar cart to fit the protrusions). The blue drawer is and was at all material times simply placed on top of the middle dividing panel separating the upper and lower compartments of the bar cart. It rests on its own weight.

7. Both the grey drawers and blue drawer inside the bar cart are for carrying bottles of drinks. The difference is that for the shorter grey drawers, the bottles are placed horizontally inside the drawers. For the taller blue drawer, because of its height, bottles are placed vertically. According to Cathay's specifications, there would be 13 bottles of different heights placed vertically inside the blue drawer. Therefore in those circumstances, although the surface areas of the two different types of drawer (measured horizontally) are the same, more bottles of drinks are carried inside the blue drawer than inside a grey drawer.

8. Whereas the bar cart is made of metal, the drawers are all made of plastic. They are rectangular in shape, and the blue drawer has large perforations. However, whilst an empty drawer is extremely light, a fully loaded blue drawer (as per loading specifications) weighs 13.5 kg.

9. It is the Plaintiff's case that on the day in question, after take-off, orders were taken by her from the passengers in the aft business class cabin. The cocktails were then prepared by her and the senior purser together. After preparation, the drinks were placed on a trolley, and she and her senior purser went out (with the trolley) to the cabin to serve the passengers. While serving cocktails in the cabin, a passenger asked for a drink (or a further drink), so the Plaintiff went back to the galley, squatted down and opened the bar cart door, and looked for the bottle of drink that the passenger had ordered. She found it at the far end of the blue drawer. Moreover, she also noticed that the blue drawer had become overloaded with bottles of drinks stacking between bottles. But apparently those bottles did not block the view of the bottle of drink that she wanted at the far end. So as per standard practice, using her left hand to hold the left front bottom of the blue drawer and using her right hand to pull the drawer out by less than one-third of its full length (i.e. 15 inches), or to be more precise as per her subsequent e-mail, 2.5 inches, she then used her right hand to reach out for the bottle she wanted from the far end of the blue drawer. As she did so, she heard the noises of glass bottles inside the blue drawer clinking and tilting, and before she realised what was happening, the bottles inside the drawer titled causing the blue drawer to topple and fall off the bar cart onto her right knee. Some bottles were broken and she suffered some minor cut wounds to her right knee and left middle finger.

10. In evidence, the Plaintiff insisted that she did not pull the blue drawer out by more than one-third. In fact, she confirmed that what she wrote in a subsequent e-mail to the Defendant's administration was correct, i.e. that she only pulled out the drawer by 2.5 inches, i.e. one-sixth of the length of the blue drawer. That also accorded with the demonstration using a similar bar cart and blue drawer that she gave whilst giving evidence at trial.

11. The Plaintiff said in evidence that when she first opened the bar cart, there were more than the standard 13 bottles of drinks inside the blue drawer, but perhaps the important thing is that the blue drawer was not then in the overloaded and improperly...