Wong Tak Hing v. Tai Sang Industrial Co Ltd
Read the full judgment text of HCA 1489/1973 on BabelCite. This High Court CFI judgment.
1. The plaintiff was employed by the defendant as a power press operator at factory premises occupied by the defendant when, on 22nd June 1970 in the course of his employment by the defendant at those premises, he suffered a severe electric shock as a result of which he has become a permanent quadriplegic. The plaintiff has had to remain in hospital ever since the date of the accident and, according to the medical evidence, should remain in hospital till the end of his life; his life expectation
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HCA001489/1973 IN THE SUPREME COURT OF HONG KONG (ORIGINAL JURISDICTION) ACTION NO. 1489 OF 1973 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 3rd May 1975. ----------------- JUDGMENT ----------------- 1. The plaintiff was employed by the defendant as a power press operator at factory premises occupied by the defendant when, on 22nd June 1970 in the course of his employment by the defendant at those premises, he suffered a severe electric shock as a result of which he has become a permanent quadriplegic. The plaintiff has had to remain in hospital ever since the date of the accident and, according to the medical evidence, should remain in hospital till the end of his life; his life expectation is assessed at five years to a maximum of ten years provided that he is under specialised trained nursing treatment for 24 hours a day in hospital. If he were to return home his life expectation is assessed at one year or less. His disabilities include incontinence of the bladder and of the bowels, very severe spasms of his two lower limbs and a severe contracture of his right hip joint; he has recurrent and persistent urinary tract infection and has to be looked after by a trained medical officer; his daily activities such as getting up from bed, brushing his teeth, washing his face, putting on his clothes, underwear, socks, shoes and sitting on a wheelchair all have to be undertaken for him by the nursing staff. Being a heavy patient, he is not easy to dress and move around; he has pain in the ribs and a lot of pain in his hip-bone and right knee; if he sits in one position for a long period, somebody else has to shift his position for him at the cost of great pain in the knee; he cannot sit up unaided and has to be turned over in bed three or four times a night, a ministration which is unsuccessful in obviating a lot of bed-sores. Having severe deformity of his fingers due to quadriplegia he is unable to grasp with his hands. Whilst his shoulder muscles and arms are mobile, the only task which he can perform for himself is to feed himself with the aid of a specially devised splint attached to his right arm and a spoon when, if food is placed in front of him, he can scoop it into his mouth. He can propel his wheelchair only to a distance of about ten feet and that achievement takes a long time. It is the opinion of his medical advisers that he will be in hospital until he dies. He is however articulate and was able to give evidence clearly. 2. The process of operating the plaintiff's power press involved his moving the mould into position and then pressing down a lever with his left hand which would cause the press to descend upon the mould and press the plastic material contained in the machine; when the lever was lifted the pressed plastic material would be pushed out of the machine in the form of a newly manufactured toy or flower; it was then necessary for the plaintiff to place this object in a basin of water which stood to his right for the purpose of allowing the product to cool and contract; after a number of products had been placed into the basin the level of the water therein would rise to the rim and sometimes lap over and at that stage the plaintiff would remove all the objects in the basin and place them upon a wire grille, which from the evidence appears to have been an up-turned wire basket, to drain. The process of draining entailed further dripping of water upon the floor. I would here observe that a Mr. Ball, Superintendent of Factory Inspectors of the Labour Department, gave evidence to the effect that he had inspected many plastic factories and that where the method of manufacture involved dipping the finished item into water a generally damp floor surface was normal. 3. The wire basket and the basin were not the only two objects standing at the right side of the plaintiff as he worked; he described the wire basket as being by the side of his body and the basin as being between the basket and a standard fan, the fan being at what he demonstrated as about 2'3" from his body and what he described as being at the most 3' from the nearest part of his body. It was the plaintiff's evidence that the fan was there constantly and that he had only seen it removed to other parts of the floor on one or two occasions during the four to five years in which he had been working at the defendant's factory; there were two or three standard fans on that floor according to the plaintiff and their purpose was to cool the moulding machines which generated a lot of heat which the workers could not tolerate and moulding machine operators in fact worked naked from the waist up. The plaintiff denied that the fan was normally kept in an electrical equipment store or so-called spare-parts room on the ground floor, which is the floor beneath his floor, and denied that he had removed the fan from that room and placed it near his machine. According to the plaintiff the fan had been out of action for about two weeks and, at the time when he sustained his very severe shock a Mr. Lam On Ngok, a supervisor of the factory was attempting to repair the plug of the fan which was in three parts. The plaintiff said that he heard a noise of sparking and simultaneously sustained his shock. At that time he was busy operating his machine and he had not touched the fan. 4. Mr. Lam On Ngok, one of two supervisors in the factory and the one who was said by the plaintiff to have been repairing the plug of the fan at the time the plaintiff sustained his shock, denied that he had been working upon the fan at the time. Mr. Lam said that at the time of the occurrence he was on the same floor the plaintiff, inspecting goods turned out by the workers when he heard the plaintiff scream. Mr. Lam said that he immediately switched off the main electricity switch; at that time, he said, he had not seen what had happened but suspected electric shock and, whilst he did not know if that was the truth of the matter, thought that it certainly could not be wrong to switch off the electricity at the main switch. After the accident, Mr. Lam said, he saw the standard fan near the plaintiff; there was no order forbidding standard fans on the floor but such fans were unnecessary since ventilation was provided by wall and ceiling fans; there was a regulation prohibiting entry to workmen to places not connected with their work but this fan was in fact taken out from the store by the workers in the summer when the weather was hot and was kept in the store-room during the winter. Mr. Lam said that he did not know whether the fan was in regular use near the plaintiff's machine. The plaintiff's evidence, it will be recalled, was that the fan was in such regular use. 5. There being an apparent conflict between some of the evidence of this witness and part of the contents of two previous written statements given by him, Mr. Gittins, for the plaintiff, applied under s.12 of the Evidence Ordinance (Cap. 8) to question the witness regarding the existence and contents of these statements. The witness admitted having made the statements and, after interrogation by counsel as to their contents, under the proviso to s.14 of the Evidence Ordinance I incorporated the statements into the witness's evidence by admitting them as exhibits in the trial. On the totality of this witness's evidence it was apparent that after the plaintiff had sustained the electric shock the witness found him with his left hand stuck to the lever of his machine and leaning against the basin of water. The witness said that he had seen the fan in use in the factory for more than a year prior to the accident but not necessarily always in the spot where the accident had happened, there being occasions when the fan was downstairs; the workers, he said, could position the fan wherever they liked and he could not remember if the fan had ever been stored away; both he and his employer were aware of the presence of the standard fan and of its use and neither the witness nor anyone else had prohibited its use so far as he knew; it would have been impossible, Mr. Lam said, for the plaintiff to have held the operating lever of the press in his left hand and at the same time to have had any part of his body in contact with the fan or its stand and the plaintiff being occupied at his machine, would have had no opportunity to tamper with the fan or its plug. 6. Mr. Lam has long left the employment of the defendant company. In assessing his evidence I have discounted entirely the admitted fact that he was observed talking to members of the defendant company in the corridor of the court before he gave evidence, since he stated that the conversation was upon purely personal matters. 7. A witness who is still in the employment of the defendant company and who, at the time of the accident, was a deputy supervisor, is Mr. Choi Wai Tin, who said that he saw no fans on that floor on the day prior to the accident and upon that very day saw only the one fan near the plaintiff's moulding machine; the fan, he said, was normally kept in the store-room on the ground floor and permission was necessary to remove it from that room; he had not been asked for such permission and, if asked, would not have given it since ventilation from ceiling and wall fans was adequate. This witness said that he had never seen that fan in use and it was the only standard fan which the company had. Moulding machine workers, according to this witness, did not work naked from the waist but wore vests, The witness said that he had personally seen the fan in the store-room on the day before the accident. His evidence that this was the only standard fan which the company had possessed contrasted with that of Mr. Ball, the Superintendent of Factory Inspectors, who said that when inspecting the factory three years after this accident he saw several standard fans near, but not in, the moulding room; they were in use and their wiring leading to the wall of the moulding room left a lot to be desired, the plugs not being fixed properly and quite a lot of wire being twisted together for temporary connection and covered crudely with insulation tape, a practice which the witness held to be dangerous; he was not satisfied with the general standard of the wiring and expressed his dissatisfaction. The fact that three years after the accident the wiring of standard fans in the premises was considered to be in a dangerous state, is no evidence that the wiring of this particular fan, three years previously, was also dangerous but for that fact there is ample evidence from an electrician and to that evidence I shall come. What is of interest with regard to Mr. Ball's evidence and what throws doubt upon the credibility of the former deputy supervisor Mr. Choi Wai Tin, is that the latter said the company had only possessed one standard fan whereas, in 1973, Mr. Ball saw several upon the premises. I need not delay my expression of opinion as to Mr. Choi Wai Tin's credibility. He was furtive in demeanour and, to my mind, thoroughly unreliable. He is still in the employment of the defendant company. 8. It had been the plaintiff's evidence that the electric shock rendered him unconscious and that he only resumed consciousness in hospital. Mr. Yeung Chik Chaw, the Manager of the defendant company on the other hand, said the plaintiff recovered consciousness at the scene of the accident whilst the witness was holding his hand and endeavouring to comfort him and that the plaintiff then expressed regret for the accident saying that it was the result of his own carelessness. The deputy supervisor, Mr. Choi Wai Tin, corroborated this evidence, saying that the words were uttered in a very low tone. The plaintiff, as I have said, claims that he only recovered consciousness in the hospital. Accepting, for the sake of argument, that this is not so and that the plaintiff did in fact utter the words alleged, I cannot place any importance upon them for he has no idea as to how he came to be so severely electrically shocked and an expression of regret for carelessness could have at best been a guess to be evaluated in the light of the traumatic experience through which he was then passing. More reliable evidence as to the cause of the shock is to be found in the evidence of the electrician, Mr. Mak Pak who was called in to check the electrical equipment after the plaintiff had been removed to what was to prove permanent existence in hospital. Mr. Mak testified that on arrival at the factory he found that the main switch was at "off"; that he checked all the electrical equipment including all the moulding machines and that every machine, including the machine which the plaintiff had been operating was in perfect order; there was no fault with the connections to the machine and in the witness's opinion nobody could have sustained electric shock from that machine. In fact, without receiving any further attention the machine was put into operation again at 4:30 on the afternoon of the same day when a new working shift came on. 9. Miss Leong, for the defendant company, put no questions to this witness about the standard fan and Mr. Gittins, for the plaintiff, refrained from any cross-examination whatever. It was left to the court to ask the witness about the fan which, it transpired, was found to be short-circuiting, the coiling in the interior of the fan, near the blades, being in contact with the casing. In that condition, the witness said, the fan was dangerous since electricity would leak on to the casing and anybody touching the fan would get an electric shock. Moreover if the floor in the region of the fan were over-damp it would increase the dangerousness of the fan since electricity would be conducted to the floor. If it were true, Mr. Mak said, that someone on that floor sustained electric shock upon that morning the piece of equipment which caused the shock was the fan. In the witness's opinion it was not necessary to touch the fan to sustain a shock; the dampness on the floor would occasion a shock but only a minor shock causing trembling. A severe shock, in the witness's view, was possible only when the fan itself was touched. 10. At the conclusion of my questions to this witness regarding the fan, I offered counsel the opportunity of putting further questions to him arising out of my own interrogation: neither elected to do so. 11. I find as facts that the plaintiff suffered this severe electric shock whilst working at his machine in the defendant's premises; that it was customary to have the standard fan on that floor of the premises for the purposes of greater ventilation and cooling; that there was no prohibition of such a practice and that the practice was known to the management; that the fan was in dangerous condition; that Mr. Lam was attempting to repair the fan at the time of the accident; that the floor at that time was wet; that the risk inherent in a wet or damp floor was appreciated by the defendants in that there existed an instruction to the workers to wear rubber shoes. 12. It was the evidence of the supervisor, Mr. Choi, that when he arrived at the scene after the accident the basin of water had been overturned. There is, however, no evidence as to whether this happened before or after the plaintiff sustained the shock nor as to whether it was the plaintiff or somebody else who overturned the basin. Even assuming, however, that it was the plaintiff who up-tipped the basin thus causing the floor to become thoroughly wet so that he sustained the electric shock, that would not absolve the defendant company from liability for there existed a dangerous state of affairs. The order to wear rubber shoes is evidence that the risk of electric shock was appreciated and that the basin of water might be overturned was entirely foreseeable. Such a situation, coupled with the existence of an electric fan which was faulty and which was being repaired in situ instead of being taken to a place of safety for that purpose, amounts inevitably to a breach of statutory duty. This is so even on the assumption that the plaintiff up-tipped the basin but, as I have said, there is no evidence that this was so and the suggestion was not even put to the plaintiff. 13. Mr. Gittins, for the plaintiff, has urged that the defendants are liable at common law and under statute, the latter by virtue of ss. 2(2) and 3(1) and (2) of the Occupiers Liability Ordinance (Cap. 314) but went on to add that the duty of care under the Ordinance was not distinguishable in this case from the common law duty of care. I do not think that it is open to me to say that the defendant company is liable at common law as well as under the statute for s. 2(1) of the Ordinance provides that the rules enacted by ss. 3 and 4, that is the rules concerning the "common duty of care" shall have effect in place of the rules of the common law though, by s. 2(2) ss. 3 and 4 have not altered the rules of the common law as to the persons upon whom a duty is imposed or to whom it is owed. In my view the defendants are clearly liable under the statute. 14. I can find no hint of contributory negligence. It was suggested by the defence that the plaintiff was to blame for the accident by virtue of the fact that he removed the fan from the downstairs storeroom and took it to the floor where the accident occurred. This, however, is pure assumption; there is not a word of evidence to support it and the plaintiffs specifically denies it. I find as a fact that the plaintiff did not take the fan from the storeroom to the first floor but that the fan was on that floor as normally incidental to the working of that floor. For the rest, nothing at all has been put forward by way of explanation by the defence, there being neither pleadings nor evidence as to any step taken to discharge their duties of care. 15. The plaintiff has also pleaded res ipsa loquitur and is, in my view, entitled also to succeed upon this ground. What we have here was a system of work which was potentially dangerous, hence the instruction as to wearing rubber shoes. The overturning of a basin of water by whomsoever, and even assuming that this was the immediate cause of the plaintiff's electric shock, was an foreseeable possibility. But if the system of work was potentially dangerous, the condition of the shorting fan was distinctly so and there has not been a word of evidence as to the maintenance of the fan beyond the plaintiff's assertion, which I accept, that it had been out of order for some time and that Mr. Lam, a supervisor, was repairing it in situ at the time of the accident. Whatever the proximate cause of the accident it was associated with the condition of the fan. Henderson v. Henry E. Jenkins & Sons (1) establishes that a latent defect cannot be relied upon unless it is shown that all reasonable care has been taken to discover any defect. 16. The situation presented in the present case is very similar to that in Colvilles Ltd. v. Devine (2) where Lord Donovan said:
17. In this case the defendants made no attempt to show that they had exercised due diligence but instead relied upon the "assumption" (so described by their manager in evidence) that the plaintiff had removed the fan from the ground floor store-room and taken it to the first floor, an assumption which I have found to be false. 18. Again, the well-known passage from the judgment of Erle, C.J. in The Scott v. The London & St. Katherine Docks Co. (3) is very much in point. That passage reads:
19. For all these reasons I find that the liability of the defendant company has been established. 20. Turning to the quantum of damages the plaintiff's earnings were $600 per month and, from the date of the accident, 22nd June 1970, to date the loss is exactly $35,000. Medical treatment at $2 per day from the date of the accident to date amounts to $3,350. As to loss of future earnings, the plaintiff is now 53 years old and his expectation of life is said to be between five to ten years. Having regard to the period of that expectation and to the multiples adopted in various cases tabulated at p.34 of Vol. 1 of the 3rd Edition of Kemp & Kemp on the Quantum of Damages, the appropriate multiple in the present case appears to me to be 7 and 7 years' earnings at $600 per month amounts to $50,400. 21. Mr. Gittins has asked me to increase this last figure by taking into account the percentage increased in the earnings of male moulding injection operators shown at document 19 of the agreed bundle of documents, being figures supplied by the Commissioner for Census and Statistics. I refrain from doing so because, whilst the figures do indeed show a quite large percentage increase for daily rated employees of this type between March 1972 and March 1974, by September 1974 the tide had turned and what had been a steady increase was being converted into a decrease. I have no figures in respect of March 1975 but having regard to the uneasy state of the labour market it is virtually certain that the decrease shown between March 1974 and September 1974 continued to March 1975 and beyond. Moreover, as Mr. Gittins rightly conceded, in the present state of the labour market a worker losing his employment would have difficulty in finding another job. These considerations militate against an increase of the award by reference to a percentage increase in earnings which has already started to dissipate. 22. Moreover, I propose to leave the figure of $50,400 untouched, neither discounting it in regard to the vicissitudes of life nor increasing it on the basis of variations in the value of money as considered by the Full Court in Wong Wai Chun v. The China Navigation Co., Ltd. (4). The two factors, I consider balance each other. 23. In regard to pain, suffering, shock and loss of amenities the assessment is, as almost always, one of difficulty. The plaintiff suffers considerable pain to this day and his loss of amenities is almost total. Mr. Gittins referred me to various awards under this head made in England and appearing in the 1973 edition of the Current Law Year Book. Most related to younger men and the average awards under this head for the six cases were around $18,000. I am not convinced that direct conversion into Hong Kong dollars is entirely appropriate since in Hong Kong the standard differs and people of working class tend to expect less in the way of the amenities of life than do those in the pampered welfare state. I assess damages under this head at $150,000. There remain damages for loss of expectation of life which I assess at $7,500. 24. The total of the foregoing is $246,250 from which figure must be deducted the amount already awarded to the plaintiff under the Workmen's Compensation Ordinance, that is $39,462.66. The resultant total is $206,797.34 and I award this sum to the plaintiff who is also entitled to the costs of the action to be taxed in accordance with the Legal Aid Regulations. Representation: S.V. Gittins, Q.C. & Francis Eddis (D.L.A.) assigned for Plaintiff J. Leong (George Liang & Co.) for Defendant. (1) 1970 A.C. 282 (2) 1969 1 W.L.R. 475, 479 (3) 1865 3 H. & C. 596. (4) 1969 H.K.L.R. 471. |