Choy Pui Chor v. or Man Cheung t/a Kent Manufacturers

HCA000864/1982

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Kempster, J.

Dates of Hearing: 14, 28, 29 December 1983, 3 and 4 January 1984

Date of Delivery: 4 January 1984

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JUDGMENT

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1. On the 29th December 1979 the plaintiff in this action, then some 26 years of age, was employed by the defendant to operate a plastic injection moulding machine in premises at Kwun Tong which constituted a factory and a registrable work-place within the meaning of the Factories and Industrial Undertakings Ordinance, Cap. 59. The machine contained dangerous parts, namely closing nips between platen motions, which it was the defendant's duty effectively to guard by reason of the provisions of the Factories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations made pursuant to section 7 of the principal Ordinance. This duty was to be discharged in one or more of the ways detailed in Regulation 5 and every guard or device used was required to be kept in its proper position while the machine was in motion. A like duty was owed by the defendant to the plaintiff at common law by reason of the relationship of employer and employee obtaining between them.

2. The relevant machine was provided with an inverted U-guard to protect the operator against injury and against any inclination to put his hand between the fixed platen and the moving platen which carried the mould. On closure of the moving platen plastic was forced into the interstices between the fixed and the moving parts and, after cooling, formed the desired product which was removed when the moving platen moved back into its original position. Part of such U-guard comprised a sliding gate which, by what is called the midway switch, prevented any movement between the platens unless the gate was shut. The operator was thus protected even when putting his hand into the gap to remove the work piece. Quite apart from being deemed to know the law the defendant was specifically told of his responsibilities in relation to his machines when inspectors of the Labour Department visited his premises in 1978. Shortly thereafter, he asserted in evidence, appropriate guards and switches were fitted where not already incorporated in the machines and a process whereby the gate was kept permanently open, the midway switch removed and the moving platen actuated by pressure on a block of wood or strip of metal juxtaposed to the closing switch, (" the piece-of-wood method'') was outlawed. The defendant delegated his responsibilities under the regulations and at common law to his cousin and foreman Mr. Wong Yan-kuen who, the court was told, left the defendant's employment after Chinese New Year 1980 and cannot now be traced. The defendant also relied, he asserted, on his factory manager and he himself visited the Plasticware Section of the premises from time to time. He told the court:

"I left it to the foreman to ensure the safety of the workers. Personally I went to the Plastic Section to inspect and if I saw any worker using the dangerous method. ('the piece-of-wood method') I stopped him and got the manager to look into it. But after 1978 'the piece-of-wood method' was not seen again; at least by me."

That statement somewhat conflicted with other evidence given in the course of the trial. The plaintiff himself told me that he had never seen the defendant scold any operator who used "the piece-of-wood method" and Mr. Ng Yau Cham, who also was employed by the defendant for a period ending two months prior to the plaintiff's accident, said: "The defendant saw me using 'the piece-of-wood system' without comment."

3. The defendant mentioned another matter which may have more than passing significance. He said that:

"Between July and December 1979 there was a visit by a Labour Department Officer. This was 8 to 10 days before the date of the accident. Someone in the office pressed the bell to tell the manager to take someone round for inspection. The bell is also used as a message-carrier. If anyone is looking for the manager, 'anyone' including inspectors, four rings are given. I was not present on this occasion".

The evidence about the four rings was enlarged upon by several witnesses; first of all by the plaintiff himself. He said:

"When I started work the main door (the guard door or gate of the machine on which he was working) had been pushed to one side and fixed in position. I was told by the foreman that if a Labour Department employee made a visit I should remove the piece of wood (which was also using) and used the main door instead. He said the piece of wood was in violation of the Ordinance. I was told that if the Labour Department officers came I should use the main door, having removed the piece of wood and clips which prevented the backward run of the gate and contact with the rear switch. The foreman then came to screw-on the mid-switch. Similar procedures were undertaken in relation to all the 7 machines in the factory. All this took about 5 minutes. I would know that a Labour Department Inspector had come to the office because the office staff would press the bell four times to indicate his presence. I remember two or three such visits. The office was approximately 100 ft. from the moulding machines. After a factory inspection the foreman would tell us to resume what I was told was an unlawful system of work. The foreman unscrewed the mid-switch on the first occasion and thereafter we did it for ourselves under supervision."

Mr. Ng Yau Cham said:

"I was told that if I heard the four-bell signal I should change over to main door operating system (instead of 'the piece-of-wood method'). By sliding open the door the mould would open and vice versa on closing it."

4. Mr. Wong Ching Yee, called by the defendant, substantially corroborated the evidence which I have just recounted. He practised a form of "the piece-of-wood method" himself like the other operators whom the court has heard and said that he had been told that when four bells rang it signalled the arrival of Labour Department Inspectors. When he heard the signal, though he really did not need such warning because he was in a position at his machine to see anyone approaching, he would put the gate back on the runway. He was operating a slighly different form of machine in an unsafe manner and was not aware what happened in relation to the operators working behind him in the workroom.

5. This evidence which is scarcely contradicted, and where it is I prefer the account of relevant matters given by the plaintiff and Mr. Ng Yau Cham to that given by the defendant, had all the hallmarks of truth and spontaneity and means that the defendant was, at the very best from his point of view, clapping a telescope to his blind eye in relation to dangerous practices calculated to speed-up production both to his and to his workers' economic advantage. The plaintiff's mutilated arm demonstrates the cost in other terms.

6. The plaintiff explained that on the 29th December 1979 he was employing the dangerous method already described and which involved disarming the machine of its safety provisions and allowed platen movement or nip. As he stood up from his chair and put in his hand to remove the product the moving platen closed; crushing his right hand. The most probable explanation is that some part of his body came into contact with the piece of wood thereby actuating the closing switch and causing this unhappy accident.

7. In the circumstances I find it established that at the material time the defendant failed directly or vicariously to discharge his statutory obligation to maintain the guard to the dangerous part of the injection moulding machine in an efficient condition and to keep it in a proper position while the machinery was in motion. The guard did not cover the aperture into which the plaintiff had thrust his arm at the time when, by reason of pressure on the piece of wood and mediately on the switch, the moving platen closed onto the plaintiff's hand. I also find that the defendant, for like reasons, was in breach of his common-law duty to provide a safe system of working for his employees. The plaintiff is therefore entitled to damages for the injury he sustained by reason of such breaches.

8. My next concern is the issue of contributory negligence. The Defence was valueless to the defendant by the end of the evidence as Mr. Kwok, who appeared on his behalf, recognised in the course of his closing speech. He sought and obtained leave to amend and I have to consider to what if any extent the plaintiff should be penalised on the footing that he also bore some responsibility for the accident which he suffered. In the course of his evidence he told me that he had been made aware by the foreman, who had been his instructor, that the use of the piece of wood was in violation of the Ordinance. He had been told that he had to forego this method if there was any prospect of inspectors coming onto the scene but, as he said:

"I had to work in the same way as everyone else. The foreman was the foreman. I was a newcomer wanting a job. I was keen to produce more, to earn more. That was my attitude until the time of my injury. I think I earned some $10 a day more by using the unsafe piece-of-wood method'. The foreman had told me to take the work pieces out myself. He did not tell us to remove the piece of wood before leaning over the machine to do so. It would have been safer had I done so but I did not realise this until after my accident. The foreman had told me that if the piece of wood was removed the machine would not run, however."

When pressed about his knowledge of the unlawful nature of the mode of production he was adopting he said:

"Despite this knowledge I continued to use the method in order to earn money. When inserting my hand into the machine I was concerned for my safety but did what Mr. Wong, the foreman, taught me. I did not appreciate how dangerous this procedure was."

9. In all the circumstances the plaintiff must himself shoulder some degree of responsibility for behaving in a way which he appreciated was dangerous albeit the gravity of the danger was not apparent to him. He was prompted, like the defendnat, by a desire to make more money. I think the appropriate degree of responsibility is 20% and the damages to be awarded will abate by that proposition.

10. Happily many figures have been agreed between counsel for the parties. Damages for loss of the right hand and the consequential pain, suffering and loss of amenity are agreed at $105,000. That figure will carry interest at the rate of 2% per annum from the 2nd March 1982 to date. As to special damages the following items are agreed:

11. Also claimed are:

Total loss of earnings for 15 months at $1,500                                 $22,500 per month

12. That figure falls, in my view, to be reduced and the appropriate figure here is $20,985. Then there is a claim for partial loss of earnings from April to July 1981 while the plaintiff was working as a hawker. In the pleading it said he was earning $1,000 a month. He said in evidence he was lucky if he got away with $100 profit. The appropriate figure there as is, I think, now conceded is $1,596. In relation to the period from August 1981 to date I accept the respective computations advanced by Mr. Kwok on behalf of the defendant. The relevant considerations include the plaintiff's absence from the work which the defendant had provided for him once he was substantially recovered from his injury. He was often absent for reasons quite unrelated to the accident. I am satisfied that sufficient overtime would have been and will be available to him at the defendant's factory and that, since September 1983, deligence bonuses have been available to be earned. The three figures that I accept here are $4,807.50, $6,132, $4,572 totalling $15,511.50. There remains a figure to be computed for future loss of earnings. The multiplier is agreed, again sensibly, at 15. The defendant's figure for the multiplicand, which I accept, involves a loss of $381 a month from the plaintiff's pre-accident earnings having regard to what he could now be earning. It gives a total, over the 15 years, of $68,580. However, I am satisfied that the plaintiff, who has sustained a disability of 55%, as Mr. Wedderburn's agreed report shows, and who has behaved since his accident with considerable resolution and fortitude is liable to be thrown onto the labour-market at any time during this period to his great relative disadvantage. I consider that this is a factor which must be taken into account in computing the proper figure for prospective future loss of earnings which I fix at $80,000 overall.

13. There remains to be deducted from the plaintiff's overall damages first of all a deduction of 20%, to give effect to my finding in relation to contributory negligence, and the sum of $50,033.33 already awarded and paid to the plaintiff by way of workmen's compensation.

14. Interest will run on the special damages from the 29th December 1979 to date at 7% per annum.

15. The consequential figures can now be agreed between counsel and incorporated in the order of the Court.

Representation:

R. Murray (D.L.A.) for plaintiff

W. K. Kwok (C.K. Tsang & Co.) for defendant