To Wai Bun v. Hon Hing Manufacturing Co Ltd

HCA004529/1979

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Coram: Jones J. in Court

Date of Judgment: 22nd December, 1981.

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JUDGMENT

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FACTS

1. This is an action for damages for personal injuries suffered by the plaintiff in an industrial accident that occurred on the 25th October 1976.

2. The plaintiff was employed by the defendant as a moulding machine operator.

3. Prior to the accident the plaintiff had been with the defendant for about six weeks, but he had had ten years' previous experience in this type of work. At the time of the accident the defendant owned twelve plastic injection moulding machines. The machines were used for the manufacture of various types of plastic hangers and related products. The machine operated by the plaintiff which was semi-automatic produced hangers for childrens' suits. After completion of the moulding process which is carried out automatically it is the employee's task to remove the finished product manually. This is done by moving back the sliding door at the side of the machine by hand enabling the other hand to be used to extract the finished product from the access provided. However, it is clear from the evidence that this access was too small for the product to be removed in this manner from the plaintiff's machine. As a result it was the common practice for the plaintiff and for other workers to remove the product from an opening in the top of the machine by standing upon a raised wooden platform placed by the side of the machine. The platform was provided by the defendant. The plaintiff sustained his injuries when the mould closed upon his left hand when he was attempting to extract a hanger.

LIABILITY

4. The plaintiff testified that the machine upon which he worked was old and was constantly breaking down. Although his evidence was not wholly clear I am satisfied that he was experiencing difficulty in extracting the finished product from a pin inside the machine to which waste matter had become attached.

5. On the Saturday before the accident he informed the foreman Mr. Ma Chor Nam who promised to effect the necessary repairs. However, when the plaintiff returned to work on the following Monday the day of the accident, he encountered the same problem. Having failed to extract a hanger at the first attempt he tried a second time when his left hand was crushed by the mould coming into operation.

6. His evidence with regard to the adherence of waste was confirmed by Mr. Lam the defendant's present foreman although he said it only occurred once every four or five years. I do not accept Mr. Lam's evidence as to time which was most unconvincing, but find that it happened much more frequently. It is significant that after the accident when Mr. Lam who was working on another machine came to the plaintiff's aid he noticed that the sliding door of the machine was half open. In all probability the accident may have been caused by the plaintiff inadvertently activating one of the switches when trying to remove the hanger which resulted in the mould closing on his hand.

7. On the day after the accident an Inspector from the Labour Department inspected the machine. His report sets out the circumstances of the accident as follows:-

8. There was evidence to show that the machine was regularly serviced by the manufacturers Hang Sang Engineering Factory Limited once a month.

9. In fact according to Mr. Lam the machine was operating again shortly after the inspection. Presumably the sliding door was repaired but there was no evidence on this aspect.

10. The defendant supplied evidence that a notice was displayed on a board in the workshop warning employees not to remove the safety guards from the machines. I accept that such a notice was posted at the time of the accident. Although the plaintiff did not agree that a safety guard was fitted over the top of the machine I believe that guards were provided. Nevertheless it appears that the guards were removed by the employees when the machines were being operated. The plaintiff and Mr. Lam were piece workers and it is clear that speed was essential. Mr. Lam said that the foreman Mr. Ma would chastise the employees when he discovered that the safety guards had been removed after which they would be replaced. However, once Mr. Ma's back was turned the guards would again be removed.

11. Mr. Ma did not give evidence, but on the assumption that he did give such orders, which I doubt, it is abundantly clear that the defendants were fully aware of their employee's practice to work without the guards in place. Mr. Lee, the factory manager, whose office adjoined the workshop, knew that the machines were being operated without the guards being in position.

12. Similar fact evidence of a previous accident was adduced. However, for the purpose of this judgment it is unnecessary for me to take it into consideration. I do not therefore propose to refer to this evidence as it has no bearing upon my decision.

13. I am not satisfied that the machine was defective, but I accept the plaintiff's allegation that due to the adherence of waste a potentially dangerous situation was created. I accept that a report was made by the plaintiff to the foreman Mr. Ma but that the fault was not rectified. Quite clearly the doctrine of volenti non fit injuria has no application.

14. By virtue of the fact that the defendant used a machine where the access was too small for the finished product to be extracted the plaintiff was compelled to use the space on top of the machine. Whilst guards were provided I find they were, to the knowledge of the defendant, not used. The glove worn by the plaintiff may have contributed to the accident. However, I accept that gloves were supplied to him by the defendant and were worn by him to protect him against the heat from the hangers as they were removed.

15. It is the duty of the employer to take adequate steps to bring an order to the notice of an employee and to ensure that he complies with it. In my judgment the defendant only paid lip service to their statutory obligations. Whilst notices were posted warning of the dangers of working without a guard it was effectively ignored. No other steps were taken by the defendant to compel the plaintiff to use the safety guard.

16. This was not a case of wilful disobedience by the plaintiff to obey an order, but one of acquiescence by the defendant. Speed was in the interest of the defendant to maintain a high production rate as well as for the plaintiff.

17. I am therefore satisfied that the defendants were in breach of their common law duty to provide a safe system of work. I do not find any contributory negligence on the part of the plaintiff.

DAMAGES

SPECIAL DAMAGE

18. The following items of special damage were agreed:-

19. There was no evidence from a qualified person to show that the claim for Chinese herbs and medicine and nutritious food were justified.

20. In Mui Ling-kwan & Another v. Wong Yin-wah & Others⁽¹⁾ McMullin J. at page 478 said:-

"I think however there should always be evidence to show that a special diet was adopted not wholly as a self-prescription of favourite delicacies but on the advice of some qualified person on whose judgment the court can rely, it being left to the court to decide in each given case, having regard to the nature of the advice and the efficacy of the prescription, whether it was in all the circumstances justifiable. Where no such evidence is adduced the claim should be very narrowly regarded especially if it is substantial although no doubt even then it would be open to a judge to make a nominal or small award provided he was satisfied that the diet included foodstuffs of noted nutritional worth."

The only evidence in support of the claim was by the plaintiff. It was not satisfactory so that I shall make no award under this head.

21. The special charges are therefore assessed at $21,018.

GENERAL DAMAGES

Pain, Suffering and Loss of Amenities

22. The plaintiff was aged 45 at the time of the accident. He lost the index and little fingers of his left hand. Three operations were subsequently performed details of which were as follows:-

23. Dr. Edmund M.T. Cheung's report dated the 9th July 1979 states:-

The plaintiff suffered considerable pain and discomfort after the accident. The medical evidence revealed that pain suffered in the left hand in February 1978 was directly attributed to the accident. Sick leave was granted for a period of twenty months. There is no doubt that the plaintiff will continue to suffer some pain and discomfort in the future. Account must also be taken of the cosmetic element caused by the ugly disfigurement to the hand. Although no specific evidence was adduced, the plaintiff is entitled to an award for loss of amenities for his enjoyment of life has obviously been affected. The injuries were serious within the category of 'serious injury' referred to by the Court of Appeal in Lee Ting-lam v. Leung Kam-ming⁽²⁾ an infant by his next friend Leung Shu Wing where the general range of awards for pain, suffering and loss of amenities is from $60,000 to $80,000.

24. I consider that the proper award for pain, suffering and loss of amenities is $65,000.

Loss of earning capacity

25. For four months from September 1978 the plaintiff was employed as a cashier at a restaurant earning about $800 per month. It is agreed that his loss of earning capacity for this period was $200 per month. His earnings at the time of the accident were approximately $1,000 per month. The plaintiff resigned from this job because he is suffering from pneumonia. Since that time he has been employed as a casual worker earning between $500-600 per month. It was submitted by Mr. Lai who appeared for the defendant that as the plaintiff was capable of earning $800 per month at the restaurant his loss of earning capacity should amount to $200 per month whilst the appropriate multiplier should be 6. On the other hand Mr. Lee for the plaintiff submitted that the multiplier should be 8 and the multiplicand $500. The evidence as to the amount of loss was vague. Nevertheless it is clear that the plaintiff is not a skilled worker. He is severely handicapped with the result that his prospects in the labour market are very poor. Having regard to the plaintiff's age and the vicissitudes of life I consider that the appropriate multiplier is 8. Doing the best that I can upon the evidence available I shall adopt a figure of $300 per month for loss of earning capacity. The damages to be awarded under this head will be as follows:-

The total assessment of damages is therefore $115,618. $38,856.38 received by the plaintiff as Workmen's Compensation will be deducted which leaves a sum of $76,761.62. I will round this figure off to $76,760. The plaintiff is entitled to judgment for this sum. There will be interest on the special damages at 6% per annum from the date of the accident, and on the general damages at 12% per annum from the date of service of the writ. Costs will be to the plaintiff with the usual taxation in accordance with the Legal Aid (Scale of Fees) Regulations.

Representation:

Mr. John Lee (Tsang, Chau & Shuen) for Plaintiff.

Mr. Thomas Lai (Ford, Kwan & Co.) for Defendant.

(1) (1973) H.K.L.R. 465

(2) (1980) H.K.L.R. 657