Chung Kei v. So Yiu and Leung Shing, t/a Wai Yip Plastic Metal Factory and Others

HCA009864/1983

1983 No. 9864

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Hunter, J. in Court

Dates of Hearing: 9, 10, 13 & 14 of January 1986

Date of delivery of Judgment: 15 January 1986

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JUDGMENT

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1. The plaintiff in this action, Chung Kei, claims damages for the very severe personal injuries suffered by him 22nd May 1981. He was then employed by the 1st defendants (whom I shall call the defendants) as a machine operator and had been so employed for about 2 years. The machine on which he was working was a plastic injection moulding machine, its function being to mould plastic beads. It is his case that his injuries were caused by the defendants' breaches of statutory duty and negligence at Common Law.

2. In order to understand the issues arising on liability, it is necessary to attempt to describe this machine and the manner in which it was operated. The first thing that must have happened was that the machine had to be fitted with a mould appropriate to the shape and configuration of beads sought to be moulded, and charged with the right quantities and colours of plastics. The next major operation was to thread the machine. This had to be done from the back of the mould. The back of the mould was protected by a wire cage which had to be pushed to one side to gain access to the mould for the purposes of threading. Two threads then had to be taken from the bobbin supply which I was told was at front of the machine, and threaded through two apertures so that they lay in the right position in the mould. The threads were apparently under some tension because in order to do this, the operator had to pass the thread through the apertures; hold them in his hand inside the mould; push them through; and then reach over with the other hand to pick them up the other side. For an ordinary right handed man like the plaintiff, this meant pushing his right hand in, holding the threads and leaning over with his left to collect them the other side. Having fastened the threads on the far side, he then replaced the guard.

3. There are number of points to notice about this particular activity which was the one on which the plaintiff was later engaged, when he was injured. First, it was something which had to be done with great regularity. I was told that re-threading could be necessary up to about 10 times a day. Secondly, in order to do it, the operator had to put one, other or both his hands inside the mould itself. Thirdly to do this, he had to remove the guard. Fourthly it followed that for protection purpose, a fixed guard was wholly ineffective, to give the operator protection whilst he was in the process of re-threading with his hands in the mould. But sadly a fixed guard was all that was present on this machine before the accident. What was necessary was some interlocking guard as described in the regulations. A guard which has to be removed in order to enable the job to be done, but where the very act of removal operates to cut off the power from the machine. Such a guard or a such a switch was first fitted to this machine after the accident

4. Having threaded the machine, the operator then goes around to the front. His first job is to select the appropriate mode with the selection switch. The two modes on this machine were manual and semi-automatic. For manual purposes, this switch was turned to the left; semi-automatic to the right; leaving a neutral position in the middle which had the effect of neutralizing the machine. When he got to the front, he would then, no doubt, hold the threads so that they were in the right position. To start the operation, he would press what is called the mould-closing switch which lay in the front and to the right of the mould. Once that switch was pressed and the semi-automatic mode was selected, the machine would operate one complete cycle. The mould would close automatically. Plastic in measured quantities, at the right temperature and for the right period of time would be injected. There was another clock controlling the cooling period. When that time elapsed, the mould would automatically reopen. The beads could then be pulled out on the thread and the process then repeated.

5. Now, this was the ordinary operating role which went on very repetitively. The danger to the operator at that stage was he had to avoid putting his hands in the mould whilst it was operating. But since he could hold the beads and the threads clear of the mould, the danger was rather less than the danger arising in the process of threading. Again, a fixed guard was no use because the product had to come out from the mould. Again what was needed was an interlocking guard which closed sufficiently across the mould to allow the product to be removed, but without allowing the hand to get access to the mould. Likewise, you wanted a guard which as soon as it was opened a little bit to allow the hand in, cut itself off with another cutt-off switch.

6. In fact, both before and after the accident an attempt was made to fix an interlocking guard to the front of this machine. But sadly both before, and even more surprisingly now, the attempt is totally inept and useless. There was fitted to this machine a sliding metal plate or door, which was meant to provide the guard to this part of the machine. The design intent was that the bottom right hand corner of this door when slid across to cover the front of the mould, was to operate the mould opening switch. From which it would follow that the mould could not be operated until it was protected by the door. If that design had been carried through, it would have been a very simple matter to put in a mid-way or return the switch a little way back, to make sure that when the gate was slid back a little way to allow the hand in, the automatic cut-off process would operate.

7. Before the accident, this design purpose had been frustrated, because a metal probe had been fitted to the bottom right hand corner of the gate which operated the switch, instead of the rightcorner of the gate itself. And it operated at such a point that the gate never covered the front of the mould at all, and the hole was left totally exposed. So it never started to fulfil its function as a guard. All this is shown graphically on figure 5 at page 101 of the document. After the accident, a mid-way switch was fitted at the suggestion of the Labour Department and the Factory Inspector. But this was put in such a position that again it is totally useless. There is so much gap that no one has to open the gate and engage the midway switch before putting their hand in. Indeed it is perhaps a good thing. The midway switch is intended to cut out the operation. When tested on the occasion of his visit by Mr Ng, the plaintiff's expert witness, he found, I think to his surprise, that by pressing the midway switch, it served to close the mould, not to keep it permanently open.

8. So to say that there was a manifest disgard of the Regulations at this factory is sadly plain and obvious. The regulations concerned are the Factories & Industrial Undertakings (Guarding & Operation Machinery) Regulations made under Section 7 of Cap 59. It is not disputed and is indisputable that the nip on this mould is a "dangerous part" of a machine within para. 14 of the First Schedule. The obligation then was to guard that dangerous part. The first alternative in the Regulations was a fixed guard. For the reasons that I have already explained that simply could not work. The next is an interlocking guard. That is precisely what was required. The definition concludes with these words "or its (the guard's) removal from a closed position causes the machinery or plant to cease operating forthwith". So that there can be no question here and indeed at the end of the day, it could not and was not disputed by the defendants that there was plain breach of these Regulations in respect of the guarding of this machine, both at the front and at the back of this mould, because the danger arose at both points.

9. I then turn to consider what other safety precautions were taken at to this workshop. I fear that the answer in one word was 'Nil'. The operators all worked on piece work, and speed and quantity of production seemed to be the primary, if not sole, consideration. Mr So Shek-kwong who was in charge of the shop and gave evidence on behalf of the defendants, summed it up when he said that "they relied upon the workers to look after themselves". A man seems to have been judged by his production results and his claims. If a man claimed to be skilled, as did the plaintiff when he arrived, that claim was not tested in any way. It was simply accepted. There were no relevant safety instructions given at all. Having regard to the inadequacies of these two guards, it might have been expected that firm instructions would have been given to the operatives to switch off the machine, to put the selection switch into neutral, before performing any function like threading which involved putting the hands in the mould. Some instructions may have been given to apprentices in the course of their training, but certainly none were given to any one like the plaintiff who claimed to be skilled. The plaintiff in fact never switched off in this way before doing this job. The defendants on Mr So's own admission were aware that he did not, and the defendants did nothing about it, and said nothing to him about it. The only instruction which Mr So claimed to have given to his operatives about switching off, and he claimed it repeatedly, was to switch off the machine in the event of malfunction. This is a totally different matter. Certainly there was no sort of supervision at this workshop, because there was no one qualified to supervise. Mr So got himself into terrible problems in the witness box, trying to describe the switch with which the operatives should have switched off this machine. He got it wrong so many times as to demonstrate that he knew very little about the practical working of this machine at all. The effect of the evidence to my mind was that so long as the production was sufficient and satisfactory, all was well. It may have been summarized by the answer which the plaintiff received from Mr So would he invited the management to replace his oil pump, which had been causing a lot of trouble. The answer was to this effect: if you don't like the state of the machine, you can leave the job.

10. There was another pointer to the defendants' attitude to safety in this workshop. It centred round the use of rubber bands. As I have already tried to explain, the fitting of the probe to this sliding door defeated the design purpose of the front guard. The defendant took this a stage further, by fitting a rubber band in some way, I am quite unable to describe, round this switch. This had the effect of ensuring that there was constant contact between the two terminals of the switch. The rubber was apparently quite a thick heavy rubber ring or band which was provided by the defendants, was found in position by the plaintiff when he first arrived, and was thereafter used by him. This meant that there was, as I said, permanent contact between the two terminals of the mould closing switch. But this did not convert the machine into a fully automatic machine. This contact simply ensured that the machine performed one cycle. When that cycle was finished, the mould automatically opened. To reactivate the machine those was terminals had to be parted and closed again. In other words, the electrical supply had to be cut off, and then restored. This could be done by a sharp knock, which forced the terminals apart and then the rubber band brought them together again.

11. This switch was located immediately behind a triangular piece of metal forming an angle to the framework of the machine. When the rubber band was fitted, the way in which this mould switch was activated, was to knock or hit that plate. That had the desired effect of opening and closing the terminals. I confess that when the plaintiff described this process in the witness box, I listened to it with some surprise and circumspection. But there is no question about his being right. Mr So, when he came to give evidence, made it clear that hitting the plate was the usual way of starting this machine. It was then made perfectly clear that this was the established shop practice: to an extent to neutralize some of the basic safety precautions by affixing these rubber bands so as to make it easier for the people to do the work quicker, by simply giving a quick thump to the plate to activate the machinery. So that was the state of affairs in this workshop on 22nd May, 1981 when this accident occurred.

12. Trouble started in the late afternoon with the oil pump - a constant source of trouble on the plaintiff's machine. He complained to Mr So, who then rang for the mechanic. The firm that was used to repair these machines was Chit Tat Repair Co. that was initially joined as the 2nd defendant in this action. The mechanic they sent was the 3rd defendant, Mr Cheung Kwok Hung. The plaintiff was waiting for his arrival. He was then invited to start the machine so that he could demonstrate the noise. There was nothing at all in the suggestion at one time being advanced that this was a breach of express instructions. No such instructions were given, and they would have been foolish if they had. He then proceeded to operate the machine for about 10 minutes with the mechanic watching and, no doubt, listening. Each time he started each cycle by hitting the plate. After about 10 minutes, one of the threads broke. So he went round the back to perform the usual function of re-threading. He was in the process of doing that, with his right hand between the moulds when the machine became reactivated, the mould closed, and he suffered severe crushing injuries to his right arm.

13. Before going back, as was his usual practice, he did not switch the machine back into neutral. He relied solely upon the fact that the mould was open when he went round to the back, and on the fact that a mould would, in his expectation, not start again unless the electrical circuit was reactivated by some one pressing the mould switch, thumping the plate or some similar occurrence.

14. What actually caused this reactivation is a matter on which upon the evidence available to me is impossible to make any concluded finding. Various possibilities have been suggested. First, it was suggested that there might have been some switch failure. This seems to me to be pure speculation because nothing was traced and nothing was replaced. Secondly, there was a possibility, much canvassed by the Factory Inspector, that this was caused by vibration. I think this is because he had detected this as a cause in other cases, and was looking for something like that by way of explantion. But the Factory Inspector knew nothing about this practice of rubber bands. There is really nothing to support the vibration theory at all. If the Factory Inspector had known about the practice of the rubber bands, I think he would have concentrated upon the electrical circuitory, and he may have concentrated likewise upon something which emerged at quite a late stage in the plaintiff's evidence.

15. When he gave this evidence, it may well have been evidence which was fully understood only by him and by the 3rd defendant who was then sitting in Court. The effect of this evidence was that there was in fact in the oil tank a plug and a socket. This plug was part of the mould circuitory. If this plug was removed and replaced, it would apparently act to re-set electrically this circuit; i.e. it could have the same effect as a thump on the plate by parting and restoring the terminals of the switch. The plaintiff obviously suspected that inadvertently the 3rd defendant had done something like this to the plug. The matter was never investigated. If I was asked to say what is the most suspicious circumstance, I think I might point to that. But there is no possible way in which I could make any sort of findings in that respect. The matter was never properly investigated and indeed the claim against the 2nd and 3rd defendants, was discontinued very shortly thereafter.

16. In those circumstances, there can in my judgment be no doubt whatever that the defendants were in breach of their statutory duty under these regulations, and on the facts that I have rehearsed, equally guilty of negligence of Common Law. The only problem on liability which occasioned me any difficulty is the allegation of contributory negligence. This centres basically on two matters which are raised of. First it said that before going round to carry out this threading operation, the plaintiff should have put the selection switch into neutral i.e. turned the machine off; and secondly it said he should particularly have done that when the 3rd defendant was present at the machine. Now in any case where a defence of contributory negligence is raised, the Court has to consider two elements: the first is causation and the second blame worthiness. In the terminology of Section 21 of the Law Reform Ordinance (Cap. 23), the first question is whether or not the damage has been caused "partly of his own fault"; and if so, the Court has to assess what is called his share of "responsibility".

17. If one is trying to identify the causative factors in this case, the factors which produced the coincidence of this man's hand in the mould at the time this machine was reactivated, one would arrive, I think, at the following. First, and foremost, the lack of any proper interlocking guard both at the front and the back; both of which would have had to have been removed for this purpose, and both of which should have operated automatically to have cut out the power to this machine. Secondly, the existence of this rubber band which meant that the circuit could be reactivated either by (i) a thump on the metal plate or its equivalent; or (ii) some re-setting of the electrical circuit. Thirdly a possibility (a matter on which I can make no finding) caused by the presence of the 3rd defendant. Fourthly the failure of the plaintiff to turn the selection switch to neutral. Those seem to be the 3 or 4 principal elements.

18. Now I consider the question of blame worthiness, particularly in the context of the failure to neutralize. The first and obvious point there is that this was a failure by the plaintiff to perform manually the precise function that a proper guard should have performed. Now there is ample warning in the authorities about the proper approach when the Court is faced with this sort of situation. In his wellknown speech in Staveley Iron v. Jones (1956) A.C. 627 as p. 648, Lord Tucker warns the Court against defeating "the object of the Statute". The point was rather more graphically put by Sachs L.J. in Mullard v. Ben Line (1971)2 A.E.R. 424, 428 when he warned against "emasculating the Regulation by the side wind of apportionment". The matter is considered in Clerk & Linsell, 15th Edition page 572 and Charles worth, 7th Edition at page 165. These defendants here were in effect saying to this plaintiff: "You should have done by hand what we were required to do by Statute and twice failed to do". I must therefore guard against emasculating these regulations by that route.

19. I think if this matter stood alone, it would not suffice for the plaintiff's purposes. But it does not. What the plaintiff was doing when he went round to the back without neutralizing this machine, was the same thing that he had always done; had done many many times before; which the defendants were well aware that he always did and did nothing about it; and which was as much the shop practice as was this rubber band practice. He was performing not a foolish function but a necessary function since he had to put his hands in this mould to perform this job. He had been lucky enough to do it for 10 years without anything happening to him.

20. In these circumstances, it seems to me, with a strong element of the wisdom of hindsight, it is very easy to say; but of course, this was an elementary precaution; of course he should have switched off. But that is not the context in which this plaintiff operated. That was not the way in which this shop was conducted. In the context of these factors, it seems to me quite impossible to attribute to this plaintiff any substantial degree of responsibility for this accident, such as the defendants were suggesting. My mind on this matter has fluctuated over a small area which is whether I should say that there was no contributory negligence or whether I should put it at a nominal figure of 10%. Looking at the matter as best as I can; looking at the total failure to give effect to any safety precautions in this workshop; the total failure to consider the statutory obligations; the total failure to give any sort of instruction to the plaintiff is to how he should do this part of work; it seems to me wrong to attribute any blame-worthiness to the plaintiff for that particular omission.

21. I then ask myself, does the presence of the 3rd defendant tip the balance against him? It may be right that the presence of somebody else added to the risk having regard to the situation of this rubber band, and it could be that his presence was decisive. But this 3rd defendant was a very skilled man. He was totally conversant with this machine. His firm and he had seen it several times as before. He knew exactly what the plaintiff was doing, and I think he was the last person whom the plaintiff could possibly have expected to have done something silly or to have put him in danger.

22. In these circumstances, in my judgment the defendants are 100% responsible for this accident and this plaintiff's injuries.

23. I therefore turn to the question of quantum, where I have been immeasurably helped by the substantial degree of agreement which was reached between Counsel. First the special damages have been agreed to date at the sum of $104,614. It is likewise agreed that the employer's compensation sum received must be deducted. That was $97,356. If you deduct that from $104,614 you get a balance on my sums (which I hope someone is going to check) of $7,258. Next the awards for pain, suffering and loss of amenity has been agreed at a sum of $125,000.

24. The disputes arises over the loss of earnings and the loss of earning capacity. There has been some agreement there. The first is that the pre-accident earnings which I have been invited to take as the basic figure for future loss, has been agreed at a sum of $2,561 a month. Secondly, it is agreed that the appropriate multiplier for a loss of earnings computation lies in the range of 10 to 12 as at today. The plaintiff was 38 at the time of the accident and is now 43. I need say no more about that than this, that having regard to the time which has elapsed since the accident, I think that the appropriate figure to take in that bracket today is 10.

25. The real problem arises on the multiplicand. The plaintiff's injuries were very serious and are graphically shown in the photographs attached to the medical report. Unhappily, the mould caught his right arm about half way between the wrist and the elbow. Below that point, he is left with a limb which is grossly disfigured and functionally in Doctor Hodgson's phrase 'completely useless'. His employment prospects have therefore been very seriously impaired. He cannot obviously do the skilled work which he was able originally to do. He is now a man who has no useful function in his right arm at all, and is therefore in effect a one armed man. Secondly, he suffers from the serious cosmetic disability occasioned by the look of this right arm, which has a real and understandable effect upon him. He is plainly embarrassed by it, and does his best to conceal it all the time.

26. Now he has made what are admitted to be a very real and genuine attempts to get work. These attempts go a long way to illustrate the problems of finding and retaining employment faced by a man in his position. In the summer of 1983, for a period of about 4½ months, he obtained what proved in the result to be his most financially successful type of employment. He was retained by a coffee store proprietor to act as coffee boy on a construction site. His earnings for a while then rose to $1,820 a month. But that employment came to an end after an accident which was expensive in coffee cups, occasioned by the fact that he only had one hand. In 1984, for a period of 9-10 months, he worked as a caretaker/car-park attendant for long hours and on night shift from 7.00 p. m. to 7.00 a. m. His earnings there reached $1,600 a month. But he fell out with the supervisor and was dismissed, and I cannot criticize him or say that that was brought about by his own unreasonable conduct. That sort of work was plainly the sort of work for which he is most suited, and from what I have seen of him, I think he would make an admirable caretaker/car-park attendant. But he has this further problem about finding one of those jobs which are not all that freely available. That is his considerable aversion to wearing a uniform, particularly in summer, which involves, what I might describe as shirt-sleeved order or short sleeves. This does not help. Again, I cannot criticize him for that. It is totally understandable in the circumstances. Finally, since March of last year (and this is his present job), he is earning $690 a month, acting as look-out man for a friend of his trading as a hawker. I need to say no more than that he apparently needs these services. That is in substance his actual earning experience over a period of about 30 months. Over that period (these figures are very approximate) he has earned, on my calculations just under $30,000.

27. Now there was a good deal of argument and discussion in this matter as to what the Courts approach should be because there has plainly been both a loss of actual earnings and a loss of earning capacity in this case in the sense that those phrases are used in the decision in Moeliker v. Reyrolle (1977)1 W. L. R.132 and other authorities. The trouble here is that one has got no firm starting figure at all. Really in the course of the argument, it was more or less agreed between Counsel that the only way in which the Court can deal with this sort of situation is to try and arrive at some figure for this man's average future earning capacity. Upon the assumption that his working life will have the same sort of ups and downs that he has had in the past to try to arrive at a figure which reflects both the good and the bad. Another way of putting it is to try to reflect his chances of finding and retaining a job which earns more than his present fall-back position as a hawker's runner. It is an estimate which has to take into account the fact that unlike his pre-accident position as a skilled man, there is no prospect of improvement, and that he will always be at the bottom of the earnings scale. I am bound to say the task is easier to define in those terms, than it is to perform. It seems to me only a degree or two off the impossible. But I have got to do the best I can on the available material. The figure which seems to me to be fair in the circumstances and which I hope reflects his future earning capacity is that I take it at an average figure of $900 a month.

28. Having taken that figure, the rest becomes mathematics, but one must not conceal the fact that this is a detailed calculation to arrive at an estimated result. The agreed continuing loss is $2,561. To deduct $900 from that. , you arrive at a figure of $1,661 a month or $19,932 a year. If to that you apply my chosen multiplier of 10 you move the decimal point, and you get $199,320. That is my assessment of the best figure that I car arrive at for loss of earnings and loss of future earning capacity.

29. So the mathematics go like this. There is a balance from the specials after deduction of the workman compensation figure of $7,258. There is an agreed figure for pain and suffering and loss of amenity of $125,000.Tthere is my assessed figure for earnings of $199,320. If I have pressed the right buttons, the total comes to $331,578, and that is the sum for which this plaintiff is entitled to judgment.

Representation:

Mr. Aiken instructed by D L. A. for Plaintiff

Mr. Pennicott instructed by M/s Denton Hall Burgin & Warrens for 1st Defendant