Tse Sin Yee v Wing Wah Cake Shop (DCPI 1618/2010); and Leung Cheuk Hin v The Hong Kong Polytechnic University (DCPI 682 of 2010)

Two cases on liability, one where the employer was found liable for a back strain injury resulting from what appeared to be a simple task and the other, a slip and fall case with no liability.

Tse Sin Yee v Wing Wah Cake Shop (DCPI 1618/2010)

In this case, the Plaintiff alleged she injured her back when lifting two to three trays of cakes from the floor to place onto a trolley before loading them into a warming cabinet. The Defendant disputed the Plaintiff’s version of events and argued that there was no need for her to carry two to three trays and she had failed to follow proper procedures for shelving the cakes. They adduced evidence from four co-workers and supervisors who all stated that the Plaintiff had received training on the first day and 'on the job' training on shelving arrangements, replenishing merchandise and the correct posture for lifting heavy goods. The Plaintiff denied that she had received any training whatsoever.

The court agreed with the Plaintiff. It criticised the Defendant for failing to conduct any risk assessment on manual handling tasks and failing to provide any training, guidance or staff manual on handling operations. The Defendant only provided training workshops on customer relations and product knowledge, which was insufficient.

An interesting comment was made by the Judge regarding the circumstances of the accident as stated in the Form 2. The Defendant had stated that the Plaintiff injured her waist and thigh while transferring cakes onto the shelves. At the trial, the Defendant tried to put forward a different version of the accident but the Judge said they had clearly accepted the Plaintiff’s version when the Form 2 was filed, and no explanation had been provided as to why they were now trying to reverse their stance.

Such an observation suggests that employers should be extremely careful what they state in the Form 2 under “Description of accident”. If they are not sure that the accident happened in the way alleged by the employee, they should make it clear that the description is based on the employee’s allegations only and no admission is made by the employer that the accident happened in such manner. If clear wording is not used, employers and their insurers may find it difficult to put forward a different version of events in the common law action.

Leung Cheuk Hin v The Hong Kong Polytechnic University (DCPI 682 of 2010)

This case reiterates that claimants must overcome the 2-stage test of negligence as laid down in Ward v Tesco Stores and Cheung Wai Mei v The Excelsior Hotel, before liability can be established.

That is, the claimant must:

  1. Show that there has been 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, and if so
  2. The defendant can still escape from liability if it can show that the accident would have happened, even if there had been in existence a proper and adequate system of safety.  

In this case, the court found that the Plaintiff did slip and fall at the towelling area of a changing room at a spot on the floor not covered with anti-slip mat, when most of the towelling area was in fact covered with anti-slip mats. However, that was not sufficient to establish a prima facie case of negligence or fault. The mere slip and fall of the Plaintiff due to some water on the changing room floor was not an “unusual event, which in the absence of explanation, is more consistent with fault on the part of the defendant than the absence of fault”.

The court said that it was reasonable for any visitor to expect there would be water spilled on the floor as the towelling area was next to the showers and warning signs had been placed near the area. Accordingly, the Plaintiff could not get over the first hurdle of the 2-stage test. But even if he had, the court found that the Defendant did have in place a reasonably safe and adequate system for visitors in the changing room. They were able to prove that the accident did happen or was likely to have happened despite their system of safety.

This latter case reinforces the idea that most occupiers will not be found liable for slip and fall accidents so long as they have a reasonable system of cleaning and inspection in place and warning signs have been installed.