Chan Wai Man v. Luk Shuet King t/a Hing Fat Plastic and Another
Read the full judgment text of HCA 5088/1979 on BabelCite. This High Court CFI judgment.
1. This action arises out of an industrial accident at the defendant's factory premises on 21st April 1978 in which the plaintiff suffered severe injuries to his right hand.
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HCA005088/1979
----------------- Coram: Mr. Commissioner Barnes Date of Judgment: 18th June 1981 ----------------- JUDGMENT ----------------- 1. This action arises out of an industrial accident at the defendant's factory premises on 21st April 1978 in which the plaintiff suffered severe injuries to his right hand. 2. The plaintiff, then a 15-year-old boy still attending school, had been working at the factory, outside school hours, for about nine months prior to the accident. He began his employment in the packaging section but he was operating an injection moulding machine at the time of the accident. 3. This electrically operated machine produced plastic handles for shopping bags. The operator initiated the moulding operation by moving a sliding panel from left to right in front of him at about waist level. This action closed the doorway between him and the mould. It also triggered a switch which turned on the power to operate a movable platen inside. This platen then moved to the mould and the two parts became completely clamped together. Molten plastic was then completely clamped together. Motlen plastic was then automatically injected into the enclosure formed by the platen and the mould. When the moulding process was completed the platen automatically moved away re-opening the mould. The sliding panel could then be moved back to the operator's left re-opening the doorway through which he could reach in to remove the moulded product. 4. When the defendant bought the machine it was uncovered at the top and remained uncovered for four accident-free years of operation even though there was a lack of protection against injury being caused through the inadvertent insertion of an operator's hand through the top into the gap between the platen and the mould during that part of the cycle when the two were being clamped together. After that period of four years the defendant installed a ...(illegible) cage-guard on the instructions of an official responsible for ensuring that dangerous parts of machinery were properly fenced as required by statute. This guard, although inadequate to meet all the statutory requirements regarding proper fencing, would nevertheless have prevented the accident which in fact occurred had it been in its protective position on top of the mould at the time of the accident. Liability 5. Conflicting evidence was adduced to explain its absence from that position. The plaintiff said in evidence that when the defendant trained him to operate the machine the guard, although on the machine, was not placed so as to prevent access to the mould from the top. The defendant taught him to extract the finished products through the side doorway and told him not to take them from the top. She did not spell out for him the danger involved in taking products through the top opening but he was able to see for himself the danger of placing his hand near the mould when it was closing. The function of the guard, however, was never explained to him and he did not at any time see it in its functional position. He had seen the defendant's husband on a number of occasions operating the machine and extracting finished products through the top. He discovered that the defendant's husband's method was a more efficient method of operating the machine in that the flow of production was smoother and the finished product cleaner. He continued to use this method up to the time of the accident. On that day - a public holiday - he started work at 8 a.m. He had a meal break between 1 p.m. and 2 p.m. and was then required to work through until 7 p.m. At about 5 p.m. whilst operating the machine he heard a sudden loud noise behind him. By way of startled reaction he instinctively turned his body towards the source of the sound and in so doing inadvertently dropped his right hand into the machine. The platen must have been closing on to the mould at the time because his fingers were squeezed between the two parts. 6. The defendant's evidence was that when she taught the plaintiff how to operate the machine the guard was in its protective position. She said she told the plaintiff that:-
When asked to comment on the plaintiff's version that at the demonstration the cage was not in its protective position she said:-
Her comment on the plaintiff's allegation that she did not explain the purpose of the guard was as follows:
Her evidence-in-chief then continued as follows:-
In cross-examination and in answering questions put by the court she gave the following evidence:-
7. Two other witnesses gave evidence regarding the positioning of the guard. One was another student-employee who said the cage was never placed in its protective position and the other was the defendant's husband who said it was always in position except when he removed it to perform maintenance work. He also denied the allegation that the plaintiff had seen him operating the machine without the cage-guard in its proper position. The plaintiff's witness had operated the machine for one or two days during the Christmas period in 1977. As he had worked on the machine for a short period so long ago I am not prepared to accept that his recollection is so accurate particularly since I have concluded from other evidence that no real attention was paid to that guard by anybody working at that factory. I do, however, accept his unchallenged evidence that he was dismissed after working for a very short period of time and that the reason for his dismissal was that he was not producing unblemished products. The evidence of the defendant's husband adds nothing because he was not a truthful witness. The real conflict in the evidence is therefore between that given by the plaintiff and the defendant. 8. One attack on the credibility of the plaintiff by counsel for the defendant took the form that his description of the accident varied substantially from the description given in his Statement of Claim. The latter description could create the impression - I emphasize "could" - that the accident occurred when he was in the act of removing finished products. But that impression, if made, would not survive the evidence which described the operation of the machine. The description in the Statement of Claim was as follows:-
9. If a row of four plastic handles has been removed from the area of the compressor then the hand responsible for removing must be clear of it as well. The Statement of Claim describes the end of one cycle namely, the removing of the finished articles (with, obviously, the movable platen stationary) and the commencement of the next, namely, "closing the front sliding panel". Although the participial phrase which describes the end of the cycle before the accident cycle follows the description of the commencement of the accident cycle the grammatical construction of the sentence conveys the proper time sequence, What the description omits is an explanation of how the plaintiff's right hand returned to the danger area during the accident cycle. The plaintiff gave that explanation in evidence. It is the same explanation which he gave to an officer of the Labour Department who investigated the accident shortly after it occurred. I am satisfied that the plaintiff has been completely consistent and truthful in his description of the accident and find that there is nothing in the omission of the explanation in the Statement of Claim which adversely affects his credit. As counsel for the defendant assured me that this omission did not embarrass him in the presentation of his case and that his only aim in drawing attention to what he submitted was a substantial variation between the plaintiff's pleading and his evidence was to attach his credit I need not deal with the matter any further. I find that the accident occurred in the way the plaintiff described in his evidence as paraphrased earlier. 10. Where there is conflict between the evidence of the plaintiff and the defendant I prefer the evidence of the plaintiff. He appeared to me to be a truthful young man. His attitude when giving evidence was the antithesis of that of the defendant's husband. Whereas the latter was prepared to say only what he thought would assist the defendant's case whether true or not the former readily agreed that the defendant had told him not to take products through the top of the machine even though this must have appeared to him to be evidence supportive of the defendant's case. His evidence that he had seen the defendant's husband operate the machine in that way has the ring of truth notwithstanding the latter's denial. Having been informed that he should not take articles through the top it is hardly likely that he would attempt to do so unless someone more experienced than he demonstrated that this was a better way. The plaintiff said it was a better way because it assisted the flow of production and produced cleaner products. This approach would gain the approval of the defendant who dismissed one student-employee because of his failure to produce clean products. A method which reduced the tendency of the machine to "jam" would also meet with her approval as delay in relieving a clogged machine could cause the kind of economic loss which caused her concern. The plaintiff's evidence that the guard was not in its proper protective position when the defendant demonstrated how to operate machine is consistent with that part of their evidence which is not in conflict, namely, that she told him not to take products through the top. If the guard was not in position the advice was necessary. If it were in position it would not be necessary because the advice would be to avoid doing something which, in the eyes of the trainee, would be impossible. In those circumstances her advice, if she did regard the guard as a necessary safety measure, would surely have been: "Never leave the top unguarded when the machine is in operation". Her emphasis on not inserting his hand supports the inference (from her remark quoted earlier about inspectors from the Labour Department) that she regarded the guard, not as an essential safety feature, but as something which had to be on the machine to be seen by those inspectors when they visited the factory. She said she was illiterate and could not read safety directives issued by the Labour Department. It is, therefore, quite likely that, having operated the machine continuously over a period of at least four years without an accident, she was convinced that, provided the finished products were taken through the side door, no danger was involved and no top cover was necessary. Certainly the installation of the cage-guard created a problem because it had to be removed whenever the machine jammed. Given the inconvenience that it caused when placed in its protective position and the advantages by way of improved production which resulted from the way her husband and the plaintiff operated the machine with it removed from that position I do not believe that the defendant would have been concerned to insist on the guard being properly placed if she had no reason to believe that an inspection was imminent. The evidence then that she trained the plaintiff with the guard not in its proper position and that the machine was constantly operated to her knowledge and without her being concerned to ensure it was always in its proper position is not only credible in itself but was related by a witness whose demeanour suggested he was a witness of truth. 11. I therefore find that the defendant was in breach of her statutory duty and was negligent in that she failed to keep the safety cage-guard in its proper position. The plaintiff's accident resulted not because he was endeavouring to remove finished articles through the top but because the cage-guard was not in its proper position. I therefore find that the plaintiff's injuries "were occasioned by reason" of that failure. The accident having occurred while the plaintiff was following a method of word tacitly accepted by the defendant at the "fag-end" of a long day when he was momentarily distracted during a startled reaction to a sudden loud noise behind him, I find that he was in no way to blame and that there was no contributory negligence on his part. Damages 12. The plaintiff sustained a crush injury on each of the four fingers of his right hand. He is right handed. He was admitted to Queen Elizabeth Hospital immediately where "revision amputation of the right index, middle and ring fingers" was done under general anaesthesia that same day. He remained in that hospital for seven days after which he was "transferred to Kowloon Hospital for about three months" - as an in-patient for 12 days and as an out-patient for the remaining period. 13. Dr. Nicolson, who examined him on 30 July 1979, reported on him as follows:-
14. At the time of the accident he was studying in Primary V at a Lutheran School. After his discharge from hospital he resumed his study with the aid of a private tutor. He eventually found that he was unable "to catch up" so he took up employment. 15. Before the accident he had intended following a career as a metal-ware worker. After the accident he went to work as an apprentice in a metal-ware factory owned by his cousin. However, he was paid less than the others because his "performance was not as good" as the other apprentices. Before the accident he could earn $30 for a fully day. After the accident he was earning a little more than that with "overtime for night work" being available but the other apprentices earned $40 per month more than he did because they were paid a little more than he was for overtime work. His economic loss results substantially from his being handicapped in meeting competition in the "labour market". To date that loss has been hardly felt because of the aid given by a benevolent relative. That aid will not always be available and as the plaintiff gets older the handicap will become greater. This part of his loss can therefore only be compensated by an award for "loss of earning capacity". Pain, suffering and loss amenities 16. Both counsel referred me to a number of previous awards but in particular to the award made in Choi v. Wong(1) where $35,000 was awarded under this head to a 17-year-old lad who had four fingers amputated. The plaintiff here, unlike the plaintiff in that case, can still use his right hand to some extent to grip. He was able in court to hold a bundle of documents and an educational psychologist reported that he has taught himself a new method of gripping a pen so that he can still write to some extent with his injured hand. Two recent decisions indicate that the awards relied on by counsel for the defence to suggest that the ceiling here ought to be $35,000 do not reflect the current assessment of what is the appropriate award. In LEUNG Yiu-keung v. TSE Fung-ping and anor.(2), Bewley, J. thought that, in a case where a right handed plaintiff had "suffered extremely serious deprivation of use of his right hand" but apparently retained his thumb and fingers, at least $30,000 had to be awarded. The present plaintiff has to face the pain, suffering and cost of another operation. In addition, something has to be added by way of "cosmetic" compensation. In LEE Ting-lam v. LEUNG Kam-ming(3) the Court of Appeal divided disablement into "four categories of ascending order according to its severity". Whilst stressing that no rigid distinction was to be made the court said of the lowest category:-
17. In Iy Kwei-sang v. FONG Sui-loi(4) Mr. Registrar Roy held that a right handed man who suffered crushing injuries to his right hand in a moulding machine and who subsequently had to have all four fingers of that hand amputated at mid-palm level fell within that category and awarded him $65,000. The injuries were of, of course, somewhat more serious than those of the present plaintiff. The plaintiff's injuries, however, should in my view take his award closer to the floor level of the "lowest category" than $35,000. I think that the award in the present case should be $40,000. Loss of earning capacity 18. In CHOW Keung-kwong v. CHEUNG Ka-kui(5) Silke, J. awarded $35,000 to a 50-year-old man earning about $2,000 per month. Although he regarded the award as "in reality ... a form of loss of future earnings" he nevertheless arrived at the figure taking into account the extent to which the plaintiff's injuries would handicap him in the competition of the labour market. In CHOI Kam-tong v. WONG Sui-fon and anor., (supra) Mr. Registrar Barnett awarded $60,000 to a 19-year-old youth, still a student, who had earned $12 per day doing factory work during school vacations but who planned to follow a career as an engineer. I think the appropriate award under this head for this particular plaintiff is $30,000. As $13,667.11 has been paid by the defendant to the plaintiff under an approved agreement by way of Employees' Compensation the amount payable under this head will be reduced to $16,332.89. Special damages 19. These have been agreed and will be awarded as follows:-
I award interest at the rate of 12½% per annum on the amount of general damages payable, namely, $56,332.89, from the date of service of the writ until today and at the rate of 5% per annum on the amount of special damages, namely, $8,182.00, from the date of the accident until today. Dated this 18th day of June 1981.
Representation: Mr. Frankie Leung instructed by D.L.A. for plaintiff. Mr. Mumford instructed by Messrs. Ford, Kwan & Co. for defendant. (1) H.C. Action No. 1574/77 (2) H.C. Action No. 4633/79 (3) Civil Appeal No. 11/80 (4) H.C. Action No. 691/80 (5) H.C. Action No. 2455/78 |