Chuk Wai Sun v. Soco Textiles (Hong Kong) Ltd

HCA003957/1979

IN THE HIGH COURT OF HONG KONG

BETWEEN

Coram: Hon. Penlington, J. in Court

Date: 7th July, 19$3

___________

JUDGMENT

___________

1. By an amended. statement of claim the plaintiff seeks to recover damages arising form an industrial accident which occurred on the 22nd of September 1976. On that day the plaintiff was employed by the defendant company as a machine operator. He was in charge of three cotton blowing machines situated in the defendant's factory at Kwai Chung. These machines are very large and in them cotton is transformed from the raw state into rolls of fibre which can then be spun into yarn

2. It is not in dispute that the plaintiff did severely injured his left hand in the machine. There were agreed medical reports by Doctor K.M. CHAN, who first treated the plaintiff, and we had evidence from Doctor R.G.M. Wedderburn. The injury resulted in the amputation of all four fingers of his left hand. In March 1977 a skin graft was done from the plaintiff's abdomen to provide a cover for the stumps of his fingers. Other operations were performed and his second left toe was removed and used to replace the 5th finger. This is a very difficult and extensive operation and was only partially successful. Doctor Wedderburn said that he has substantial loss of use of his left hand. He has only a one pound grip and while he can use his left hand but has no real manual dexterity with it. He said the ends of the finger stumps are painful if hit but there will not be any further disability. So far as the loss of his toe is concerned Doctor Wedderburn said that this would only affect him if he was standing or walking for a long time. He said he could work as a messenger or caretaker but could not do work requiring manual dexterity. Doctor Wedderburn assessed his disability as 40% permanent disability.

3. The plaintiff gave evidence and said that he started to work for the defendant on the 11th of May 1976 as a cotton blowing machine operator. Some photographs of this machine were produced as part of the agreed bundle of documents. Plaintiff said that he was paid a salary of about $700 per month at the time of the accident and that if he was still employed by the defendant this would now be about $2,000 per month. He said he looked after three machines and he had supervisors but they did not come to see the machines very often. He said there were oilers employed by the defendant and if there was a serious fault with the machine the oilers were the people who rectified it.

4. On the 22nd of September 1976 some pieces of cotton coming from the rear of the machine caused an obstruction. The plaintiff said that fumes started to emerge from the machine indicating that it was over-heating and he thought there was a danger of fire . He said he could not find the metal hook which is supplied for picking out cotton pieces which are causing obstruction and he therefore tried to pull out the jammed cotton with his left hand. He indicated how he did this using the photograph No. 8. He said that photograph Nos. 11 and 12 also showed his hand in the position it was when he was trying to remove the cotton. He said he was standing on part of the front of the machine which is a weighing device and photograph 6 on the second bundle of photographs shows the plaintiff in a position in which he says he was at the time. He said that before doing this he had switched off the machine, using the switch on the front. of the machine which can be seen in the photographs, which stops the rollers at the front. He also went round to the side of the machine and switched off another switch which stops the other machinery. He said that the front cylinders had stopped when he tried to remove the cotter but the rear moving parts were still rotating. He said he shouted several times "cotton jammed" but that nobody came. Because he felt there was a serious danger of fire he therefore decided to do what he did. He said that there was no cover over the machine at the place where he placed his hand. He said that his hard actually went in between the stationary rollers and was caught by moving machinery behind the rollers. The amended statement of claim refers to the hand being caught by the pins of the "cylindrical rotating wiring beater".

5. Mr. KWOK for the plaintiff however said that this rotating beater was not the Kirschner beater shown on a diagram produced by the defendant. The plaintiff said there was another beater and he indicated on the diagram where he thought that beater was.

6. The plaintiff said that he had not been given any training in the operation of machine and that before working for the defendant he was doing similar work but with different machines.

7. He said he was taken to Princess Margaret Hospital and was in very severe pain. He said he still has some pain when he uses his left hand. He said he has become very depressed following the accident and while he now has a job which paid $1,200 a month he is worried that he may lose it. He also said that he took a large amount of special food and drugs since the accident and he estimated in fact he had spent some $100,000 on special food and drugs. The claim for special food is however only $25,000. This special food and the drugs had not prescribed by any medical practitioner but the plaintiff said he thought they were necessary for his recovery. He said he had had considerable difficulty in obtaining any sort of the work and that he had been rejected by many other factory owners because of his disability.

8. The plaintiff denied that he had placed his hand through a glass door of the top of the machine and that in doing so his hand had come in contact with the Kirschner beater. He was quite definite about that. He also said that the missing part of his hand could not have been found near the Kirschner beater. He said the missing part was in fact in the front of the machine and he saw it there. He said he was aware that parts of the machine would continue to revolve after the machine was turned off due to their own momentum. He agreed that if the cage rollers and the cages themselves were moving the cotton is pushed out` and a hand could not go into the machine in that way. However he said in fact the rollers had stopped but there were moving parts behind the rollers and it was those moving parts which injured his hands after he placed it through the rollers.

9. The defendant called a Mr. KWONG King Chuen who is a lecturer at the Hong Kong Polytechnic. He is a graduate of the Hong Kong Technical College and a member of the Textile Institute. I accepted, and it was not challenged, that he is an expert on textile machinery.

10. He said he inspected the machine in question and produced two diagrams D1 and D2 which are of the same machine. He said that when the cages and cage rollers are moving they all must move together. They move in such a way that cotton passes between them and if they were moving any attempt to put a hand between them from the opposite direction would be unsuccessful as it will be pushed out.

11. He said there was a gap but only of 5 millimetres between the top cage and the top cage roller. He also said that there was a small gap between the bottom of the cage and the bottom cage roller but a hand would not go through either of those gaps. He also said that he considered it impossible to put a hand between the two cage rollers when they were stopped. He said they are very heavy and there is very considerable pressure between these two rollers. He also said that there are no moving parts between the cages and the cage rollers as indicated by the plaintiff on D.2. He said that after switching off the machine it would take some time for the Kirschner beater to stop. This would normally be 20 to 30 seconds but could be up to a minute. He said that a glass lid which must be raised to get access to the beater has a micro switch and if the handle, which is shown on photograph 4, is moved so as to open the lid the micro switch would automatically switch off the beater. He said that quite often the material jams near the beater and a worker would have to open the lid in order to clear it. He said there are no beaters near the cage rollers and there is none between those cage rollers and the Kirschner beater.

12. Further evidence was given by Mr. YIM Kwong-kim who is a Technician employed in the defendant's factory. He said he was there when the accident occurred in 1976 but he was in the rest room at that time.

13. He said that if there was a blockage the operator should inform the oiler. If the cotton jams at the rollers the metal hook which was produced is used to pull it out. The operator might do that himself. However he should first stop the machine. He said such metal hooks were always available and there were some 20-30 on the shop floor.

14. He said that after the accident he examined the machine and in particular in the vicinity of the Kirschner beater and the two cage rollers. He said he saw part of the plaintiff's fingers which were between the sides and the arms of the Kirschner beater. This was about 1½ hour after the accident.

15. Finally evidence was given by Mr. PANG Cho-tai who was the oiler on duty at the time of the accident. He said he was about 100 feet away feeding cotton into the other end of the machine and he did not hear the plaintiff called out before the accident. He denied that it was very noisy in the area, although they must have been a substantial amount of noise from these large machines, and he said that cotton can smoulder if any of the rollers become obstructed. He said if that happened the operator should switch off the machine and to come and tell him.

16. Having considered the evidence and in particular the evidence given by the technical expert I am quite satisfied that this accident could not have occurred in the manner described by the plaintiff. I am satisfied that it would not be possible for him to put his hand through the cage rollers in the manner he had described and that even if he did so there were no moving parts behind them which could have caused the injury which he suffered. I accept the evidence of the finding of part of his hand in the Kirschner beater and am satisfied that the injury could only have occurred through contact with that beater. That, however, is not the plaintiff's case and he specifically denied that he put his hand into the Kirschner beater. As has been pointed out by Counsel for the defendant the Kirschner beater is as well protected as it possibly can be. It has a lid which can only operated by turning a handle which operates in turn a micro switch switching off the driving engine. The only device which one could possibly think of which would add to the safety would be some form of brake whereby the beater could be stop rather than simply running down. However I do not think I have to go into the question of whether the beater was in fact properly guarded because, as I have said, the plaintiff specifically denies that was how he came by his injury. The plaintiff was also definite that at the time of the accident the front cage rollers had stopped. That being so there can be no question that his injury was caused by those rollers.

17. As in all cases such as this one inevitably has a great deal of sympathy for the plaintiff who clearly has suffered not only a serious physical disability but also has been substantially affected mentally. He has, as was described by Doctor Wedderburn, shown considerable courage and determination in overcoming a serious and very painful operation. He has, under the circumstances, made a good recovery. Nevertheless I can find no evidence' indicating that the accident was caused by the negligence of the defendant company. The claim is therefore dismissed. The defendant is entitled to its costs to be taxed in accordance with the Legal Aid Regulations and there will be an order for payment out of court of the moneys paid in by the defendant.

18. Although I have found for the defendant in the matter, I have been asked nevertheless to assess damages which I do as follows :-

Representation:

Lester KWOK instructed by D.L.A. for the plaintiff.

C.L.Smith instructed by Munro & Co. for the defendant.