Justice Bokhary PJ
Employers are duty-bound at common law to take reasonable care for their employees’ safety. This common law duty retains its importance despite the existence today of a large body of work safety legislation. Being a duty of care, it is not absolute. But the standard of care demanded is naturally a high one since personal safety is at stake. Breach of this duty resulting in injury to or the death of an employee affords a cause of action against the employer in the tort of negligence. If there is one question of law lying at the heart of the present appeal, it is this. What does it take to prove a breach of this duty? Such a question is necessarily a broad one since the detailed answer in each case must depend on its facts. So neither Mr Neville Sarony SC for the appellant employer nor Ms Audrey Eu SC for the respondent employee was entirely right or entirely wrong when he said that this appeal turns on law while she said that it turns on facts. Shortly stated the circumstances of the present case are as follows.
The appellant employer Cathay Pacific Airways Ltd operates an airline. On 17 November 2000 the respondent employee Ms Wong Sau Lai was injured in an accident while working for Cathay as a cabin attendant. The accident took place on board a passenger aircraft during a flight from Hong Kong to Tokyo.
Three cabin crew members were on duty in the aft business class cabin. In descending order of seniority they were a senior purser, a flight purser and a cabin attendant. Ms Wong was the cabin attendant and therefore the most junior of the three. Shortly after take-off, drinks were being served to passengers from a trolley by the senior purser and Ms Wong. The flight purser was seeing to the meals which would be served later on. While drinks were being served a passenger requested a drink or another drink. To comply with this request Ms Wong went to get a bottle from a bar cart in the aft galley of the cabin.
The bar cart consisted of an aluminum frame and several plastic drawers. There were a number of grey drawers in which bottles lay horizontally and a taller blue drawer in which bottles stood vertically. The blue drawer was 15 inches long. It was normally loaded with 13 bottles, and weighed about 30 lbs so loaded. Ms Wong was squatting in front of the bar cart. As she was opening the blue drawer to get a bottle, this drawer fell out of the bar cart and landed on her right knee. That is how she was injured.
In the courts below
Ms Wong sued Cathay in negligence for damages for personal injuries and consequential loss. The trial judge (Andrew Cheung J) found Cathay negligent and Ms Wong contributorily negligent. He apportioned responsibility equally between them. So he halved the damages which he assessed, then deducted what Ms Wong had already received by way of employees’ compensation and awarded her the net sum together with interest and costs.
Cathay appealed to the Court of Appeal on liability and quantum. The Court of Appeal were unanimous in declining to interfere on quantum. But it was by a majority (Le Pichon and Yuen JJA, Rogers VP dissenting) that they dismissed Cathay’s appeal on liability. In the result Cathay’s appeal to the Court of Appeal was dismissed with costs. Cathay then sought the Court of Appeal’s leave to appeal to us on liability.
In granting Cathay such leave, the Court of Appeal imposed conditions under which Cathay has to pay Ms Wong’s costs here and below whatever the result here. Cathay could have treated the grant of leave subject to those conditions as a refusal of leave and chanced its arms by applying afresh to the Appeal Committee of this Court for leave. But Cathay eventually chose instead to accept those conditions.
Cathay’s principal contentions
It was for Ms Wong to prove her case. Cathay now seeks to overturn the success which she enjoyed in doing so at trial and on intermediate appeal. Its principal contentions on final appeal are as follows:
The only way in which the blue drawer could pose a potential hazard was if it was deliberately misused, in other words, if it was handled in a way that no one, let alone an experienced and well-trained and supervised cabin attendant, would conceive of handling it.
And the claim was distorted so that it became a question of to what lengths an employer must go in order to guard against the deliberate folly of its employees who themselves create the very danger from which they sustain injury.
Let us examine those contentions.
Particulars of negligence pleaded
The particulars of negligence pleaded on Ms Wong’s behalf against Cathay were of
How did the accident happen?
Ms Wong’s evidence as to how the accident happened may be summarised as follows. Squatting in front of the bar cart, she located the bottle containing the requested drink. The bottle was at the far end of the blue drawer. She noticed that the blue drawer was overloaded, additional bottles having been stacked between the usual thirteen. Supporting the bottom of the blue drawer with her left hand, she began to pull it out with her right hand. When she had pulled it out by less than a third of its full length, she heard the “clinking” sound of bottles tilting. And before she realised what was happening, the blue drawer fell out of the bar cart and landed on her right knee.
The trial judge did not accept Ms Wong’s account of how the accident happened. In particular he did not accept her evidence that the blue drawer had contained more than 13 bottles or that it had not been pulled out by more than a third of its full length. He noted that, according to the cabin safety report prepared by the In-flight Services Manager Ms Karen Young, the aircraft was in its “climb” phase at the time of the accident. But it has not been pleaded or said in evidence that the climb had anything to do with the blue drawer falling out of the bar cart. So the trial judge rightly treated the climb as irrelevant to what he had to decide.
Circumstances taken into account by the trial judge
In arriving at his finding that Cathay had been negligent and apportioning 50% of the responsibility to it, the trial judge took into account all the circumstances as he saw them. These included, he indicated, the heaviness of the blue drawer when loaded with 13 bottles, the fact that it could fall out of the bar cart if pulled out too far and the reasonable foreseeability of momentary failures to follow standard procedure that pressure of work can bring about. He observed that “primarily it is the employer’s duty to provide a safe place of work, as well as safe plant and equipment [and] to give warnings and supervision”. And he discussed the evidence which had been given as to possible modifications to the blue drawer that would, in his view, have greatly reduced the risk of it falling out of the bar cart.
System of work
Employer’s liability is said in Street on Torts, 11th ed. (2003) at p.266 to be “one of the most highly developed areas of the law of negligence”. And a safe system of work - it is observed in Winfield and Jolowicz on Tort, 16th ed. (2002) at p.298, para. 8.13 - is “the most frequently invoked branch of the employer’s duty [and] also the most difficult to define”. In a similar vein, a proper system is said in Markesinis and Deakin’s Tort Law, 5th ed. (2003) at p.569 to be “probably the most important, but ill-defined, aspect of the employer’s duty”. These statements are of course made in regard to the position in Britain. But similar statements can justifiably be made in regard to the position in Hong Kong.
The practice of judges and academics alike is to speak in open-ended terms of the matters that system includes. I know of no attempt to provide anything like an exhaustive list, and doubt that any such attempt would prove successful. In Speed v Thomas Swift & Co.  KB 557 at pp 563-564 Lord Greene MR said:
I do not venture to suggest a definition of what is meant by system, but it includes, in my opinion, or may include according to circumstances, such matters as the physical lay-out of the job - the setting of the stage, so to speak - the sequence in which the work is to be carried out, the provision in proper cases of warnings and notices, and the issue of special instructions. A system may be adequate for the whole course of the job or it may have to be modified or improved to meet circumstances which arise. Such modifications or improvements appear to me equally to fall under the head of system.
It is of course generally far easier to say whether something comes within a concept than to define the concept all the way out to the extreme limits of its meaning. This is certainly true of the concept of system. Whatever system may or may not encompass, there can be no doubt that the way in which Cathay’s cabin crews obtained drinks for passengers comes within its compass. Getting a bottle out of the drawer may sound like a relatively simple exercise. But the point is neatly put in Charlesworth and Percy on Negligence, 10th ed. (2001) at p.713, para. 10-64 where it is said that “a system of work must be instituted when it is necessary in the interest of safety, even where the work consists of a regular and uniform kind”. A safe system of work was plainly necessary in the present case. This is because the drawer in question could fall out while being opened and was a heavy one liable to cause injury if it fell onto the person opening it or somebody else.
When the present case reached the Court of Appeal, Rogers VP (who was in the minority) took the view that “if [Cathay] had been guilty of negligence it had to be in relation to the system of work and not in the nature of the equipment as such”. As for the procedure which Cathay had devised for getting bottles from the blue drawer, Rogers VP, quoting from the witness statement of a Cathay In-flight Services Trainer Ms Carmelina Heredia, set it out as follows:
The training provided by Cathay to Ms Wong and other trainees in the operation of that procedure had been, in Rogers VP’s view, “careful and extensive”. And he found no negligence proved against Cathay.
Giving the first of the two majority judgments in the Court of Appeal, Le Pichon JA noted that “[t]he system of work devised by [Cathay] entailed the pulling out of the blue drawer, albeit by no more than one-third of its length,” and continued by saying this:
Was it reasonably foreseeable that if that happened, the blue drawer would fall off the cart causing injury? In my view, the judge was right and the answer to both questions must be in the affirmative. The pulling out of the drawer would normally be accomplished by a single motion and the extent the drawer is pulled out would depend on the strength applied. It is a question of judgment how hard the drawer had to be pulled in order to achieve the desired result. The fact that [Ms Wong] had had 5 years' experience as a cabin attendant at the time of the accident would suggest that she should have been familiar with the manoeuvre.
Then Le Pichon JA cited Lord Oaksey’s observation in General Cleaning Contractors Ltd v Christmas  AC 180 at p.190 that employees have to function “in circumstances in which the dangers are obscured by repetition”. Having done so, Le Pichon JA appropriately noted the evidence from which it appeared that cabin attendants “worked under considerable pressure” when drinks or meals were being served. There can be liability where the injured employee had to do things in a hurry even though there would have been none otherwise. The situation of the tea lady who was on a tight schedule and won her case (Osarak v Hawker Siddeley Water Engineering Ltd, “The Times”, 29 October 1982) may be contrasted with that of the cleaning lady who was not on a tight schedule and lost her case (Cheung v Attorney General  4 HKC 288). As for Ms Wong’s situation, her job as a cabin attendant was obviously one of considerable pressure not only as to time but also as to weight of responsibility for passenger safety and comfort.
Next Le Pichon JA turned to Lord Tucker’s statement in Christmas’s case at p.195 as to an employer’s obligation. This, Lord Tucker there said, is “to take reasonable steps to provide a system which will be reasonably safe, having regard to the dangers necessarily inherent in the operation”. In this connection Le Pichon JA cited Lord Reid’s statement in Smith v National Coal Board  1 WLR 871 at p.873 H that an employer must always have in mind “not only the careful man, but also the man who is inattentive to such a degree as can normally be expected”.
The system for getting bottles from the blue drawer was seen by Le Pichon JA as less than reasonably safe for reasons which she stated in this way:
In the cart in question, it would appear that the grey drawer situated above the blue drawer obstructed the retrieval of bottles from the far end of the blue drawer. But unobstructed access to those bottles without necessitating any pulling out of the blue drawer (thus eliminating or at any rate minimizing any risk of injury) would appear to be possible in at least two ways: either by ensuring that the upper compartment housing the blue drawer does not also house a grey drawer or by first removing the grey drawer (containing only 3 plastic bottles of mineral water of 1.5L each) and placing it in the space on top of the bar cart before accessing the bottles placed at the far end of the blue drawer. If, as would appear to be the case, the task in question could be performed in circumstances that would involve no or virtually no risk injury, it could hardly be said that all reasonable steps had been taken or that the system devised was reasonably safe. If so, it would follow [Cathay] was itself negligent.
In the opening paragraph of her judgment Yuen JA said that she agreed with Le Pichon JA’s conclusion that Cathay “was liable in negligence for having failed to provide a safe system of work”.
Having said that, Yuen JA added that she was of the view that Cathay was “also liable in negligence for having failed to provide suitable equipment”. She explained this view by saying:
The blue drawer freestanding inside the bar cart was unsuitable for the purpose for which it was used, in that it was reasonably foreseeable that it would be unbalanced if slid out beyond the point of stability, and that it was reasonably foreseeable that an employee would be injured by the toppling drawer with its heavy contents.
Suitable equipment is simply another term, of which there are many, for what Lord Wright famously called “adequate material” in Wilsons & Clyde Coal Co. Ltd v English  AC 57 at p.78.
Of course the duty of care owed by employers to employees at common law is a single duty to take reasonable care for his employees’ safety. This is so even though it is convenient to think of the duty as involving the provision of safe co-workers, a safe place of work, safe equipment, a safe system of work, proper instructions and supervision and (where called for) adequate training. As Lord Keith put it in Cavanagh v Ulster Weaving Co. Ltd  AC 145 at p.165, “[t]he ruling principle is that an employer is bound to take reasonable care for the safety of his [employees], and all other rules or formulas must be taken subject to this principle”.
While the duty is a single one, the aspect of the duty most engaged in the present case is, in my view, system. So it is right to bear in mind everything which Lord Reid said in Christmas’s case at p.192 about the heavy onus which lay upon a plaintiff who seeks to have condemned as unsafe a system which has been used for a long time in an important trade. As to this, there was evidence that carts like the one in the present case were standard equipment in the airline industry. But it is unknown whether the systems operated by other airlines for getting drinks from their carts were the same as Cathay’s.
Acceptable alternative system proposed? If not?
What crucially divided Rogers VP from the other members of the Court of Appeal and the trial judge is, I think, to be found by contrasting a passage in the learned Vice President’s judgment with one in Le Pichon JA’s judgment. The passage in Rogers VP’s judgment which I have in mind is this one:
I would mention that in actions involving intellectual property rights, where the feasibility of a design of equipment and questions of whether a particular construction is operable (which arise where there are issues of ‘novelty’, ‘lack of inventive step’ (previously referred to as ‘obviousness’) and ‘susceptibility to industrial application’ (previously covered by ‘utility’) are matters which are commonly raised, proper particulars of a proposed design or construction are required and not only is expert evidence prepared but experiments are commonly carried out with models. Design changes for mechanical equipment cannot be properly considered with a couple of imprecise suggestions or questions thrown out at the end of a witness's evidence. This became even more clear to me after the argument. During the course of the appeal I had made some suggestions only to find out later, on further consideration, that what I had been thinking of would not provide any acceptable solution.
That approach is to be contrasted with the approach articulated by Le Pichon JA when she said this:
What system should be adopted is ultimately a matter for [Cathay] rather than the court for it is [Cathay] who has the obligation to take all reasonable steps to ensure that a safe system of work is in place for its employees.
A defendant must of course know the case which he has to meet, and the issues to be decided must of course be made clear to the court. This is well illustrated by the case of Colfar v Coggins & Griffith (Liverpool) Ltd  AC 197. The facts of, and the decision in, that case may be taken from the headnote at pp 197-198 where this appears:
A dock labourer working in the hold of a ship stowing bags of salt, which were being lifted from a barge alongside by two derricks working in ‘married gear,’ a system involving the fixing of one derrick arm in an outward position by means of a guy-rope, was injured when several bags of salt fell from a sling into the hold in consequence of the derrick arm, which was not properly secured, having swung inboard, failure to secure it properly being attributable to a fellow-servant:-
Held, that the accident was due to the isolated act of the fellow-servant and not to any failure of the employers to maintain a proper system of working and that accordingly the doctrine of common employment applied.
I turn now to Viscount Simon LC’s dictum at p.203. Referring to the issue of whether the accident was due to the defendant’s failure to provide and maintain a proper system of work, he said:
To raise this issue, the statement of claim ought to set out, so far as relevant, what the proper system of work was, and in what relevant respects it is alleged that it was not observed. Instead of this, there is merely an allegation that the bag of salt ‘fell out of the sling on the plaintiff owing to the negligence of the defendants’, followed by particulars many of which cannot be regarded as alleging defects of ‘system’ at all.
Although the statement of claim omitted to do that, the omission was catered for easily enough. That was done when (as Viscount Simon LC noted on the same page) counsel for the plaintiff made it plain to their Lordships that what he relied on was the alleged overloading of the last few slings by picking up too many bags at the same time.
Viscount Simon LC’s dictum was considered in Dixon v Cementation Co. Ltd  1 WLR 746. At p.748 Devlin LJ (as Lord Devlin then was) referred to that dictum, and said:
I do not think it means that, in every case where an unsafe system of working is alleged, it is necessary for the plaintiff to undertake the burden of pleading, and proving, an alternative system of work which could have been adopted and which would have been safe. That is for the employer to provide. There may be cases in which the plaintiff will not get very far with an allegation of unsafe system of work unless he can show some practicable alternative, but there are also cases – and I think this is one of them – in which a plaintiff can fairly say: ‘If this is dangerous, then there must be some other way of doing it that can be found by a prudent employer and it is not for me to devise that way or to say what it is.’
That was cited with approval in the High Court of Australia by Taylor and Owen JJ in their joint judgment in Neill v Fresh Food and Ice Pty Ltd (1963) 108 CLR 362 at p.369. And it was applied by Walters J in McInerny v Schultz (1981) 27 SASR 215 at p.222, a decision of the Supreme Court of South Australia in its original jurisdiction.
As much as any other claim for negligence, a claim based on an alleged breach of an employer’s common law duty of care has to be proved by the plaintiff. But I see no warrant for insisting that a complaint against the employer’s system can never be established unless the plaintiff manages to propose an acceptable alternative system. That would involve imposing a special rule for which I see no warrant. As Lord Hoffmann said in White v Chief Constable of South Yorkshire Police  2 AC 455 at p.505 F–G, an employer’s liability to his employees for negligence “is not a separate tort with its own rules. It is an aspect of the general law of negligence”.
The position, as I see it, is as follows. When considering whether an employer was in breach of his obligation to provide a safe system, it is relevant to see if the plaintiff manages to propose an acceptable alternative system. But even if the plaintiff does not manage to do so, the court is by no means precluded from nevertheless finding the employer in breach of that obligation. Anything less flexible would be an unwarranted fetter on proper judicial decision-making in an inherently fact-sensitive area.
For those reasons, I hold that identifying an acceptable alternative system was not a pre-condition to finding that Cathay had failed to provide a safe system.
Changes since the accident?
Lest it be misunderstood, a word ought to be said on the absence of evidence as to whether any (and if so what) changes have been made by Cathay to its system in question since this accident. That absence is neither surprising nor a matter for criticism of either side. In Hart v Lancashire and Yorkshire Railway Co. (1869) 21 LT 261 at p.263 Bramwell B (as Lord Bramwell then was) said that “people do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident”. At least in general that must, I think, be right. Bramwell B said (ibid.) that “a proposition to the contrary would be .... to hold that, because the world gets wiser as it gets older, therefore it was foolish before”. And to that may be added a policy consideration. People should not be discouraged from introducing enhanced safety measures for fear that doing so would be seen as an admission that the previous measures were inadequate.
No previous similar accident
Cathay places reliance on the fact that the system in question had been in operation for a considerable time without any previous accident similar to Ms Wong’s accident. In this connection Cathay cites Michaels v Browne & Eagle Ltd  2 Lloyd’s Rep. 433. In that case McNair J said this at p.437:
In each case it is a question of fact which has to be decided in a practical manner, whether the employer has exercised reasonable care and skill in the provision of the system of work in fact provided, and in deciding this issue the absence of accidents over a course of years, the absence of any complaint by Trade Union officials or by factory inspectors, are very relevant evidence although, of course, by no means conclusive.
The absence of any previous similar accident is properly to be taken into account in Cathay’s favour. But, at the same time, Ms Wong is entitled to have it borne in mind that such absence is by no means conclusive.
I accept that the absence of any previous similar accident is a factor, but consider it a rather limited one. In Crafter v Metropolitan Railway Co. (1865-66) LR 1 CP 300 a passenger fell while ascending the stairs at a railway station. There were no hand-rails along the walls of the staircase. One of the questions was whether the defendant’s failure to provide hand-rails constituted negligence. As one sees at p.303, it was only after giving more cogent reasons why not that Erle CJ added at the end that “many thousand persons have used [the stairs] without any accident having happened”. And in Thomas v Great Western Colliery Co. (1894) 10 TLR 244 Lindley LJ (as Lord Lindley then was ) is reported (at p.225) as having said that “long immunity from accident did not prove absence of carelessness”.
As Mason, Wilson and Dawson JJ said in the joint judgment which they gave in Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at p.309, “the weight that will attach to an accident-free history .... is a matter upon which minds may differ”. Even if one were inclined to attach more weight to the accident-free history in the present case than the trial judge and the majority in the Court of Appeal appear to have, their view would still be entitled to due respect.
Concurrent findings of fact
The decision of the House of Lords in Bolton v Stone  AC 850 was discussed by Lord Reid in The Wagon Mound (No. 2)  1 AC 617 at pp 642-643 where he said this:
In their Lordships' judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.
Here was a cabin attendant serving drinks to passengers under considerable pressure as to time. She was getting a bottle from a drawer which, being fully laden, weighed about 30 lbs. This involved her using one hand to support it and prevent it from falling out of the cart and onto her. The danger involved in that exercise was apt to be obscured by its repetitive nature. And being only human, she would not be immune from momentary lapses of attention. Did Cathay fail to take reasonable care for Ms Wong’s safety? This was the crucial issue of fact at the trial.
If the blue drawer was pulled out too far while being opened, it was liable to fall onto and injure the person opening it. Cathay contends that it had sufficiently catered for that danger by training cabin crew members
to support the drawer with one forearm while pulling the drawer with the opposite hand and
not to pull the drawer out for more than one-third i.e. 5 inches of its full length of 15 inches.
Rogers VP said that “in so far as [Ms Wong] was holding the drawer in the left hand rather than supporting it on her left forearm and using her right hand to pull the drawer forward, she was acting contrary to the manner in which she had been instructed”. Le Pichon JA wondered about that. If the drawer was to be pulled out for no more than 5 inches, would it not be only the hand rather than any part of the forearm that would be used to support the drawer? The instructions to cabin crew members would seem less than clear. And even if they were clear, would they be adequate? As Yuen JA pointed out, they involved the cabin crew member concerned having to estimate when one-third of the drawer had been pulled out. She regarded the making of an inaccurate estimate through time pressure or momentary inattentiveness as reasonably foreseeable.
As can be seen from Sky Heart Ltd v Lee Hysan Co. Ltd (1997-98) 1 HKCFAR 318 at p.334 B, this Court’s practice not to disturb concurrent findings of fact save in wholly exceptional circumstances is not obviated by a dissent in the intermediate appellate court. The trial judge having so found and the Court of Appeal having (albeit by a majority) so affirmed, there are concurrent findings of fact that Cathay had failed to take reasonable care for Ms Wong’s safety. Having examined the broad circumstances proved or admitted, being those discussed above, I am satisfied that they permit that view of the facts. And having examined the relevant legal principles, being those discussed above, I am satisfied that neither the trial judge nor the majority in the Court of Appeal made any error of legal principle. While I of course respect the dissenting view which Rogers VP strongly held and clearly stated, I see nothing in the circumstances of this case to justify the wholly exceptional course of disturbing concurrent findings of fact.
Wisely in the light of what we said in Wishing Long Hong v Wong (2001) 4 HKCFAR 289 at pp 297I – 298B and in Poon v Hsin Chong Construction Co. Ltd (2004) 7 HKCFAR 148 at p.165 F-G about how difficult it is to upset a trial judge’s apportionment of responsibility, Cathay does not appeal against apportionment.
For the foregoing reasons, I would dismiss the appeal with costs here and in the courts below, and order legal aid taxation of Ms Wong’s costs.
Justice Chan PJ
I agree with the judgment of Mr Justice Bokhary PJ.
Justice Ribeiro PJ
I agree with the judgment of Mr Justice Bokhary PJ.
Justice Fuad NPJ
I agree with the judgment of Mr Justice Bokhary PJ.
Sir Thomas Eichelbaum NPJ
I agree with the judgment of Mr Justice Bokhary PJ.
Justice Bokhary PJ
By the unanimous decision of the Court, the appeal is dismissed with costs here and in the courts below, and there will be an order for legal aid taxation of Ms Wong’s costs.
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