Yeung Wing Yin and Others v. Motor Electric Manufacturing Co. Ltd.

HCA002676/1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: The Hon. Liu, J in Court

Date of hearing: 10th-12th December 1985

Date of delivery of judgment: 30th December 1985

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JUDGMENT

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1. Yeung Wing Yin is still a minor today. He was born on the 31st July 1965. He sues the defendant for its alleged negligence by his mother and next friend. For convenience, I will call Yeung Wing Yin as the "minor plaintiff".

2. The minor plaintiff claimed to have been introduced by one Mrs. Yip to the then factory supervisor, Mr. Yeung with a view to applying for work in the defendant's factory. According to the minor plaintiff, Mr. Yeung asked him to obtain for use an identity card of someone else's and thereafter, requested him to fill in the age of the person whose identity card the minor plaintiff had borrowed as suggested. Mr. Yeung categorically denied all these allegations. He could not recall whether the plaintiff was introduced by Mrs. Yip. He told the Court that a lady in the Personnel Department would normally oversee the completion of forms by the workers. He had only a vague memory of matters concerning the minor plaintiff, yet when he came to his denials of these allegations, he was adamant. He also denied that the minor plaintiff gave him his age. The bare facts remain that the minor plaintiff was then twelve and had no identity card and that without some operation of the defendant company, the minor plaintiff could not have successfully used a sixteen-year-old's identity card. There has been no allegation of illegality or fraudulent representation. Therefore, nothing much really turns on these allegations except for the fact that the defendant company, I find, knew the age of the plaintiff. I prefer the evidence of the minor plaintiff to the denials of Mr. Yeung.

3. The minor plaintiff's school performance was less than satisfactory. About one month after leaving school, he joined the defendant company in March 1978. Several months later, he had himself transferred to work on the copper wire machine. The minor plaintiff was instructed for a few mornings, with the then Foreman, Mr. So returning from time to time to keep an eye on him. There was some disagreement as to the duration of instructions so given by Mr. So. But as the plaintiff had been acquainted with the operation of the copper machine before his transfer and he had worked on the machine for quite some time (8 days according to Mr. So and more than a month according to the minor plaintiff) before the accident, the instructions duration is not a matter of any great importance. What is crucial is what were the specific instructions given to the minor plaintiff as to when the machine should be turned off. But on these instructions, there seemed to be general agreement: The minor plaintiff was instructed to switch off the copper wire machine when going off work or leaving his seat for lunch, the lavatory or any other reason. As Mr. So agreed in cross-examination, in effect the minor plaintiff had merely been instructed to turn off the machine when it was left unattended. The minor plaintiff emphasized that he had never been instructed to switch it off when the same was not in use.

4. On the 31st of August 1978, the minor plaintiff's own machine was allegedly out of order and Mr. So sent him to work on another copper wire machine. This was disputed by Mr.So who claimed that the plaintiff was working on his own machine at the time of the accident.   There was some initial reluctance on the part of Mr.So, the then Foreman, to concede that a reel of copper wire weighing up to several kilogrammes could abruptly start the motor at its maximum speed so as to cause the copper wire to snap. He also displayed some partiality in trying to persuade the Court that there was no unnecessary reels of copper wire stored under the machine table. He would have the Court believe that as the then manufacturing process required two colours, he himself would deliver only two reels to each worker who would take time off for going to the godown for extra supply within every 1½ to 4 hours depending on his own efficiency and that the operators would dutifully return the reels of unfinished copper wire to the godown after work. The object of the exercise was, so the Court was told, not fear of pilferage but precaution against the possibility of the operators using incorrect specification wire the following morning. Mr. So could easily have checked the wire specification on his morning round. Even if there had been such a tedious practice, little effort seemed to have been made to enforce it. What is so telling, is Mr. So's answer in re-examination as to whether any reel would be left overnight. His reply was not "Never", but "Should not be".

5. I prefer the version of the minor plaintiff that his usual copper wire machine was out of order and with permission of Mr. So, he started to work on another identical copper wire machine which had a slightly smaller perspex screen than that in photograph "P8" but without the tin can. I find, as the minor plaintiff testified, that there were more than 10, mostly slightly used reels of copper wire under the machine table next to fire foot pedal. The minor plaintiff was unaware of the wire specifications of these reels. Mr. So also disclosed that whilst only wires of two different colours were used at the time, the defendant company had in its possession 37-38 types of wire of various diameters.

6. The copper wire machine was for winding copper wire onto a bobbin as shown in photograph "P10". The machine had to be first switched on and then the foot pedal depressed, presumably gently, so as to produce, according to Mr. So, a smooth rotation speed. When the desired number of revolutions was achieved as shown in the meter behind the perspex screen, the operator would have to stop the machine and cut the copper wire. The whole operation would take less than 1 minute per bobbin.

7. At the time of the accident, the minor plaintiff had been working for about half an hour. The bobbin then on the machine was in the course of being wound when copper wire reels stacked up under the table fell over, causing an obstruction. The minor plaintiff could not recollect precisely how many reels fell. He stopped the motor. He must have lifted his foot from the pedal. He bent down to try to clear the obstruction. The reels of copper wire fell down again and the foot pedal was struck, starting the motor to run. It was common ground that very little pressure would be required to depress and activate the foot pedal. As a result, the copper wire still tied to the unfinished bobbin snapped and a piece of it hit the minor plaintiff in his left eye. The obstruction was sudden and unexpected, and the minor plaintiff found it necessary to halt operation for removing the obstacle.

8. After the injury, the minor plaintiff did not experience much pain. He was advised to and did take a rest, but ultimately he consulted the Yaumatei Eye Clinic. He was in Queen Elizabeth Hospital for 7 days and had an operation. His left eye is now completely useless. It could only detect light and darkness and see blurred shadows of objects within a short distance. He has no normal vision in his right eye which Dr. Heffernan described as "a partially lazy eye" with the best corrected vision at "6/18 due to a high degree of corneal astigmatism". It seemed to be the consensus that the defendant must take the minor plaintiff as it found him at the time of the accident with an impaired vision in his right eye.

9. The defendant did not suggest how the accident happened. The Manager of the defendant, Mr. Au Yuk Wan reported it to the Labour Department on the 7th September 1978, whilst still giving the age of the minor plaintiff as 16 instead of just over 13, in these terms : "While the workman was binding copper wire, some copper wire ends shot into his eye".

10. The perspex screen was described by the minor plaintiff as smaller than that shown in photograph "P8", but there was no expert or any evidence to suggest that it was inadequate for the protection of an operator in his usual sit down working position. Mr. So conceded that the perspex screen was for protection against any worker's hair being caught by the revolving machine parts as well as the known and recognized risk of "bits of copper wire" breaking off. It is highly probable that the minor plaintiff would not have suffered any eye injury sitting upright in a working position and that he was given an injured left eye in a bending down position. It is inconceivable that the minor plaintiff would have been prepared to stop his machine consequently reducing his working time and income at piece rate for no apparently good cause, particularly when he instantly halted his operation without even waiting for the bobbin on the machine to finish in a matter of much less than a minute. I accept the version from the minor plaintiff as to why he found it necessary to immediately clear the obstruction and how the accident occurred.

11. In the circumstances, I find that the defendant was negligent in having or allowing the reels of copper wire stored, stacked up under the machine table at which the minor plaintiff worked at the time of the accident, in not instructing or supervising the minor plaintiff to clear these stacked up reels before commencing work and/or in failing to provide the minor plaintiff with a pair of protective goggles.

12. If the stack of copper wire reels had been absent from next to the foot pedal, there could have been no possibility for the motor to be so abruptly started as it was. Falling objects from the machine table edge would not strike the foot pedal and depress it judging from the table size as shown in photograph "P8". The plaintiff has thus failed to establish that the defendant was negligent in not installing a proper guard over or for the foot pedal.

13. There was no evidence to suggest that the perspex screen was inadequate for an operator in his usual sit down working position, but it is quite obvious that the perspex screen would not protect the worker in all other conceivable positions. Mr. So explained that "only the copper wire (the minor plaintiff) was winding was underneath his machine" and that the transformer then wound would require two different colours of wire. It would seem therefore that the reel not far the time being in use would be placed under the table, and the operator was expected to bend down at some time to pick it up. It may well be that the operator would not be expected to retrieve the other reel, if it was under the machine table, unless there was no unwound wire from the other colour reel attached to the machine. There was no evidence on this aspect, and it would be a futile exercise to speculate. But the perspex screen as shown in "P8" and "P10" would clearly not provide full protection to the eyes of the operator even when the copper wire broke off at a place beyond the edge of the screen. Indeed, the minor plaintiff could have escaped eye injury if he had been provided with a pair of safety goggles in the instant case.

14. There was, in the circumstances, no adequate supervision from the defendant particularly for a child worker just over 13. The minor plaintiff was never instructed to switch off the machine when it was not in use. That was part of a safe system for which the defendant claimed to have given clear instructions. I find that defendant failed so to provide a safe system of work and was thus further negligent.

15. I also find that the defendant was in breach of the little disputed implied terms in the minor plaintiff's contract of employment as pleaded in paragraph 5 of the Re-Amended Statement of Claim.

16. I take the view that Regulation 39(3) of the Factories and Industrial Undertakings Regulations enjoined the defendant company from storing reels of copper wire under the machine table and in doing so or permitting the same to be done, the defendant was in breach of that statutory provision.

17. It was alleged that in any case the minor plaintiff was guilty of contributory negligence. The minor plaintiff was never instructed to switch the machine off when it was not in use. Nor was any of his colleagues so instructed. The minor plaintiff could not have himself foreseen the necessity or advantage of doing so, particularly when he was just over 13. For general efficiency, I should have thought keeping the machine switched on was the normal reaction to be expected of any operator, especially one working at piece rate. Moreover, the minor plaintiff told the Court that these reels of copper wire "were usually stored in the same place" and that they were "stored in the same place for the other machines" as well. The minor plaintiff was never instructed or told that these reels should not have been there under the machine table nor was any of his colleagues so instructed. I accept his evidence. Given the sudden obstruction leading to the mishap occurring in a short space of time, the minor plaintiff was left with no time to make any reasoned judgment. He cannot be criticized for failing to exercise any or any due care or paying any or any proper attention to ensure his own safety as alleged.

18. In conclusion, I find that the minor plaintiff was not himself in any way negligent.

19. As to damages, the minor plaintiff stopped work for about 8 months. He was in hospital for 7 days and underwent an operation. Thereafter, he attended the Outpatient Clinic. He also paid a number of visits to Dr. Yeung. I agree with Mr. Bell that 8 months is unreasonably long for an eye injury such as that sustained by the minor plaintiff. I would accede to Mr. Bell's request that it should be reduced to 4 months, at $676 per month i.e. $26 a day for a 26 days month totalling $2,704.

20. The minor plaintiff sustained no loss of income after the accident in Hong Kong. From June 79 to June 81, he was working in the position of or equivalent to a delivery boy. The only observation I need to make is that when he was serving on the lorry, he found the sunshine into his eyes unbearable and had difficulty in coping with the heavy work.

21. He left Hong Kong for Brazil in July 81. The minor plaintiff claimed that he could not match the stamina of other Chinese workers and he earned less than his colleagues by about half. To sum up:- From July 81 to January 82, he was earning US$40 against his colleagues' US$80. Between July 84 to November 84, he was earning US$70 against his colleagues' US$120-130. From June 1985 onwards, he was earning US$50-60 against that of his colleagues' US$130-150. In a letter dated the 5th August 1985 "P12", his uncle and employer gave his earnings as half a million Brazilian currency a month as against that of one and a half million Brazilian currency a month for the other Chinese cooks, i.e. the minor plaintiff's earning capacity is about 1/3 of the other Chinese cooks. The minor plaintiff underestimated the wage differential in his alleged loss of earning capacity if his uncle is accurate, and his uncle exaggerated both his pay and the wage differential if the minor plaintiff is correct. As in most personal injury cases, one must allow some degree of exaggeration. This case is, I find, no exception. I am prepared to accept as a result of the minor plaintiff's injury, in conjunction with his remaining impaired vision, that his earning capacity has been reduced not by 2/3rds as his uncle has stated or a half as he would have this Court accept but by only 1/3rd. 1/3rd is selected primarily as the next convenient ratio in the series of ½ 1/3 ¼,  1/5 etc. 1/3rd also seems to be consistent with the minor plaintiff's evidence that he could only work 10 hours as opposed to 16 hours put in by the other Chinese cooks. For his wage, I would take the minor plaintiff's lesser rate.

22. The minor plaintiff is not working in Hong Kong. His ties are now with Brazil. There is no reason why the plaintiff must return to Hong Kong to work even if he should, as the defendant suggested, suffer no loss of income here. The defendant did not invoke any duty to mitigation on the part of the minor plaintiff. The minor plaintiff's alleged reduced income in Brazil was criticized as a deliberate self-deprivation, and it was contended that the disparity could easily be removed by his resumption of work in Hong Kong. A man's earning capacity cannot always be gauged by his income derived from a particular territory most conducive to his better performance. Every man enjoys a free choice of his work location, and loss of his earning capacity arising from an injury should not be so restrictively assessed provided that his place of work has reasonably been selected. The minor plaintiff's brother and father are in Brazil. His mother is expected to join the family there in the near future. The plaintiff has learned his trade in Brazil and established his roots there. He now prefers to live in Brazil than Hong Kong. There is no reason why he should not continue to work in Brazil. I hold that the minor plaintiff is entitled to claim loss of his earning capacity in Brazil. Moreover, the minor plaintiff's then lowly position in Hong Kong was that of or equivalent to a delivery boy. There is no evidence whether he would be equally competitive as a Chinese cook here to-day.

23. In Hong Kong, either by law or perhaps in different tempo, a working man normally keeps less hours, though working just as hard. In Brazil, working hours for Chinese cooks are generally more extended. 16 hours, I accept, in Brazil is the normal working hours for a normal Chinese cook, and the minor plaintiff is able to put in only 10 a day.

24. I would not leave this part of the case without passing the comment that the market rate of one's wage is generally hearsay, but a matter of common knowledge. The minor plaintiff has been working as a Chinese cook in Brazil for a number of years, and he certainly can be relied upon to be conversant with the labour market rate. Some evidence of his colleagues' wages was first-hand hearsay, and I would admit it in the exercise of my discretion. Other evidence, in particular the US$120-130 monthly rate, the minor plaintiff learned from "other Chinese working outside". Presumably, the $130-150 monthly rate also came from the same source. This might well be "hearsay-upon-hearsay" or multiple hearsay. However, the minor plaintiff has, since June 1981, been working in Brazil. He could reasonably form a personal impression of the Brazil labour market condition. The tenor of his evidence on the wage rate reflected his own feel of that condition, which I accept. Moreover, I rely principally on evidence of his personal income. His evidence gave a lower rate than that given by his uncle. He was adamant that he was correct. I calculate his loss on the basis of his lower rate.

25. The plaintiff told the Court that his savings were meagre. When his mother was unwell in 1982/1983, he remitted some US$300 to her. In mid 1985, he had savings of only US$600. He explained to the Court how and why names of himself, his brother and those of his uncle's sons and partners were used for the businesses of his uncle, Mr. Yeung Chat. The motive as given was far from being commendable.

26. Mr. Ramazzini stated in his affidavit that the minor plaintiff was a joint owner of a Chinese restaurant, "Aguia Do Vale". We know not what language the alleged conversation was conducted in. If the plaintiff spoke in Spanish or English, it could readily be appreciated that misunderstanding might arise. Mr. Ramazzini's said affidavit contained an unforgivable mistake. Having exhibited the company registration search, he went on to say that the document confirmed the minor plaintiff as being not a registered proprietor. That is obviously incorrect. It is inexplicable as to how Mr. Ramazzini could have had himself so erroneously committed on a matter which is clearly untrue. The minor plaintiff is also not an illegal resident of Brazil. He will be returning immediately to Brazil to work. That is another inaccuracy. Further, the minor plaintiff's uncle Mr. Yeung Chat explained in his letter of the 5th August that the plaintiff was an employee, and Mr. Ramazzini had given no explanation on affidavit even as at the 5th December as to why no attempt was made to clarify with Mr. Yeung. The affidavit of Mr. Ramazzini was disclosed to legal advisers for the minor plaintiff only at the commencement of these proceedings, and he was not here for cross-examination. I prefer the direct evidence from the minor plaintiff himself and find that he has been in the employ of his uncle and has never had any proprietary interest in any of his uncle's businesses.

27. Therefore, as to quantum, I will award in favour of the minor plaintiff as follows :

28. Loss of earnings in Hong Kong :

29. I would allow the minor plaintiff a 15 years' purchase. At US$30 a month, it would be US$5,400 which, at 7.8, equals to HK$42,120. The special damages are agreed at $1,635. I am not prepared to award the alleged $2,700 as costs and expenses for the tonics and herbs which the evidence has clearly failed to establish to have been either medically required or have had in reality contributed to the recovery of the minor plaintiff from the injury.

30. I would award $120,000 for pain and suffering and loss of amenities in view of the minor plaintiff's impaired right eye.

31. To summerize :

32. I would allow interest on special damages at 6% per annum from the date of injury to the date of judgment and 2% per annum from service of the writ to judgment for the general damages of $120,000. Counsel will have to address me on interest and any deduction for a workmen compensation award.

33. The minor plaintiff should, I think, have costs on a Legal Aid Regulations taxation.

Representation:

Mr. J. Bleach assigned by D.L.A. for the Plaintiffs

Mr. A. Bell instructed by M/s. Denton Hall & Burgin for the Defendant