Sin Yuk Lin v. R.E. Dietz Co Ltd

DCCJ004363/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4363 OF 1969

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Coram: Cons, D.J.

Date of Judgment: 13 February 1970

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JUDGMENT

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1. This action arises out of a factory accident. The plaintiff, a lady now in her middle thirties, was employed by the defendant to operate an electric press which punches holes in pieces of metal destined to become the bases of kerosene hurricane lamps. The system of work on such machines is that the operator, sitting in front of them, feeds in pieces of metal, technically known as "founts" and resembling small, cheap tin bowls. With a bamboo stick she pushes them along a slide in the front part of the machine to a point where they will meet the die, then by the depression of a foot pedal causes the die to be plunged into the fount, thereby punching the necessary holes. Upon the retraction of the die the fount is ejected through the rear of the machine by means of compressed air. To prevent accidental contact between the plunging die and the operator's hands the appropriate area of the machine is protected by a fixed metal cage or guard. The operation is easily understandable by reference to the photographs produced before me, and I also had the benefit of seeing a short excerpt from a moving film. If properly observed the system is perfectly safe and could under no circumstances result in injury to the hands of the operator.

2. Such was the system described to me by the defence witnesses and which they said was in operation as far as the plaintiff was concerned on the day in question. But the practice which the plaintiff said was adopted by her on that day was radically different. Firstly the machine was not provided with a guard of any kind, either fixed, moveable or otherwise; secondly the plaintiff fed the machine by hand instead of with a bamboo stick; and thirdly the machine was not equipped with any air ejector at all, so that the processed founts had also to be removed manually. She had complained to the foreman of the lack of the proper equipment but was told to carry on regardless. This she did, feeding in and removing the founts with her bare hands. Furthermore, apart from the standing defects I have just mentioned the machine was not in efficient running order, in that on that morning it jammed three times, that is to say, the die did not descend when she depressed the foot pedal. Each time she mentioned this matter to the foreman and on each occasion the machine was set right by one or other of the company's mechanics. But very shortly after the third occasion the die descended not once but several times on a single depression of the foot pedal, catching her hand and causing serious injury to two of her fingers.

3. The two versions are inherently contradictory, and it is basically a question of whether the evidence of the plaintiff is to be believed or that of the defendant company's foreman and his assistant. In addition the defendant factory manager also gave evidence to the effect that on the same day he found the fixed guard in position on the machine and the machine functioning normally; but this did not take the matter any further for its inspection was only made about one hour after the accident, which would have allowed ample time, had any person thought it appropriate, for a missing guard and air ejector to have been replaced. It might have assisted the court had any of the other machine operators been called as a witness. One would assume that coming to the aid of the injured plaintiff at the moment of the accident they would have immediately remarked the absence of such an important and conspicuous component as the metal guard, or that perhaps they would have heard her earlier complaints. It is now some two years since the accident occurred, but one would have thought that at least one of the 28 workers in that section would still have been traceable.

4. Each of the three main witnesses has good reason to misrepresent the fact; each faltered to some extent under cross-examination; I found no help from their demeanour in the witness box. But in coming to my conclusion where the truth is more likely to lie, I have borne in mind certain considerations that flow from their evidence. On the one hand it was put to the plaintiff in cross-examination that particular remedial measures were taken upon her machine that morning by a mechanic, one Ah Hung. Ah Hung was not called, but counsel does not put such a question without instructions, and I infer from this that the plaintiff did that morning make more than just the one complaint mentioned by the foreman and his assistant and that the defect on that occasion was in some way connected with the air ejector. This is some support for her story, although at the same time it tends to discredit her evidence of the complete absence of the ejector.

5. On the other hand the plaintiff's evidence is considerably at variance with the position that emerges from her Statement of Claim. I place no reliance on the discrepancy in regard to the first breakdown, which in paragraph 5 of the Claim appears as what might be termed a double strike but in her oral evidence as no strike at all. This is the kind of mistake that is easily made by a person unused to court procedure who is giving evidence for the first time. But I am impressed by the absence from her pleadings of any mention whatsoever of the air ejector, a matter on which she was adamant in her evidence and which is of great importance to her by accounting for the presence of her hand underneath the die at the crucial moment. Again her evidence was to the effect that the accident occurred at least not long after 9 o'clock in the morning, that is just over one hour after she started work; but there is other evidence that she worked that day for four hours and in fact increased her rate of production beyond that of the previous day. There cannot therefore have been very much wrong with the machine or much time wasted in its repair. The figures in this respect I accept from Mr. Leung, the general manager of the defendant company. In giving evidence he refreshed his memory from the factory records, records of which an offer was made for the plaintiff's inspection but which, at least in court, was not taken up. For a similar reason I am satisfied that the plaintiff was not telling the truth when she denied that her rate of pay was connected in any way with her rate of production.

6. Bearing all these matters in mind I have come to the conclusion that where there is contradiction the evidence of the defence is to be preferred. I find that on the day in question the machine operated by the plaintiff was fitted with a suitable guard and that at the time of the accident was functioning properly, with the exception of a tendency, common to machines of this type, for the fount occasionally to remain adhering to the die on its retraction. In this circumstance the operator should use her bamboo stick to prize off the offending fount and push it through the rear of the machine. I do not know whether or not on this particular day the plaintiff had been provided with a bamboo stick. It may be that she received her injuries in attempting to remove a recalcitrant fount by putting her hand beneath the metal guard. It is obvious that for some reason her hand was in that area. But the actual reason can only be a matter of speculation and the court is not allowed to speculate. In any event that was not the case put forward by her. This rested mainly on the lack of the guard and air ejector, although it also alleged a general lack of supervision. It might certainly have been that the actual presence of someone in authority at the very moment would have prevented the accident. But it cannot be expected that each worker should be constantly watched over every minute of the day. The plaintiff admitted having been instructed in the use of a bamboo stick upon her joining the factory some three months earlier and that she had in fact made use of such a stick in the past. Her evidence of feeding the machine with her bare hands was not challenged by the defence and was a practice that should have been stopped. But I am not satisfied that this in itself in any way contributed to the accident.

7. In case I should be wrong in my conclusions it is proper that I consider the question of damages. Special damages of loss of wages for five months and three days are claimed. But I accept that after approximately two months the plaintiff was offered a suitable job in the packing department of the defendant company. She appears to have had an earlier unfortunate experience with regard to employment in the factory, but I am not satisfied that this was sufficient to warrant her out-of-hand refusal of the packing offer. The defence appears willing to accept two months as an appropriate period of recuperation, which at $6.00 per day would put the special damages of $360. General damages I would have assessed at $6,000.

8. I therefore enter judgment for the defendant with costs on Scale 5, the plaintiff's costs to be taxed under the Legal Aid Ordinance,  certificate for counsel.

Representation:

C. Ching instructed by Deacons for Plaintiff

Mills-Owens instructed by Wilkinson and Grist for defendant.