Chui Yu Yau v. Chan Pak Luk t/a Fung Lok Plastic Factory

Industrial Accident – machine contaiig dangerous parts – statutory duty and negligence – no duty on employer to war or advise experieced workmen – accident occasioned solely through fault of workman – employer ot liable.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

ACTION NO. 3173 OF 1986

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BETWEEN

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Coram: H.H. Judge L.J. D'Almada Remedios in Court

Date: 12th day of February, 1987.

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DECISION

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1. This action arises out of an industrial accident at the defendant's factory premises on the 22nd of November 1983 in which the plaintiff suffered tho loss of the tip of his right index finger.

2. At the defendant's premises there were 8 plastic injection moulding machines of different types. The plaintiff who was employed as a moulding machine operator was engaged in the operation of one of these machines which was about 4'6" in height. The machine was an automatic machine for the production of plastic flowers which when produced would be automatically ejected. The machine contained dangerous parts boing closing nips between platen motions. The dangerous parts were guarded by a sliding iron door referred to as ‘the gate’. The gate was obviously provided as a device to protect the operator against injury and against any inclination to put his hand between the fixed and the moving platen when they come togother. The gate shielded or covered an opening of approximately 1 sq. ft. without which gate the dangorous parts may be reached by hand. If ono slides the gate to the left thereby exposing the dangerous parts the gate would hit a switch causing the platens to open and the machine would then automatically come to a stop and cease to function. This was evidently a built-in safety measure to insure against any mishap to an operator when the moulds are exposed or required to be attended to for any purpose. Although the machino wouli become non-operational when the gate is opened but when the gate is closed by sliding it over to the right thereby covering the dangerous parts, it would trigger another switch putting the machine into motion again. There is no evidence before me that the gate was detachable or has ever been detached.

3. The top of the machine was fitted with a detachable fence or grill. In this connection I accept the evidence of the defendant and the plaintiff's co-worker that there was such a grill covering the top of the machine. If different types of flowers were to be produced, the moulds would have to be changed. It would appear that thc grill on the top of the machine was made detachable to enable thc moulds in the machine to be removed or changed. Thero was a power switch in the machine which could be used to cut off the electricity. Shortly before the accident the plaintiff changed the moulds. He did this by first sliding open the gate causing the machine to stop and then switching off the power to isolate the supply of electricity.

4. Although the plaintiff's case on the pleadings is that his finger got clipped as he was changing the moulds his evidence does not bear this out. He changed the moulds without any mishap. Having done that and having put the machine in operation and while the maclline was in the course of producing flowers it was found that somo flowers became stuck to the mould. The plaintiff then opened the gate that shielded the dangerous parts. This caused the machine to stop functioning. Instead of using the opening opposite the gate to get the flowers unstuck, he reached over and put his hand through the top of the machine to detach the flowers. It was while doing this that the machine suddenly came to life with the result that the tip of his index finger was crushed by tho platons coming togother. He was unable to explain what activated the machine although he suspects that it was the sleeve of his shirt that got caught somewhere which caused the machine to start. He did not elaborate upon this although it may be possible that his sleeve may have caught the handle of the gate causing it to close. If so, this would activato the machine. There was suggestion that the machine ever had any loose connections or that it was ever found that it could function while the safety gate was in the open position. There is every reason to suppose that had the defendant reached for the flowers via the opening opposite the safety gate the injury would not have occurred as the machino was so constructed as to become non-operational while the gate was opened.

5. At the tima the defendant sustained the injury when he reached for the flowers by getting to them through the top of the machine, the grilled fencing at the top of the machine was not there it having been removed by the dofendant when he changed the moulds. He did not thereafter replace the fencing.

6. It would be convenient at this juncture to deal with the question of whether there was a breach of statutory duty on that account. The grilled fencing, unlike thd iron gate, is not fixed but detachable. It does not cease to be an effective guard for that reason. Under Regulation 5 of the Factories Industrial Undertakings (Guarding and Operation of Machinery) Regulations affective guarding includos an 'automatic guard' which is defined as 'a guard which automatically prevents an operator of any machinery or plant from coming into contact with a dangerous part when that part is in motion'. The detachable fancing, therefore, fails within the definition of an automatic guard.

7. But was there a breach of statutory duty as the fencing was not there when the accident occurred ?

8. On the facts of this case I would answer the question in the negative. The guard or fencing need only be kept in its proper position while the machinery 'is in motion' : sub-reg. 2(c) of reg. 5 of the Factories Industrial Undertakings (Guarding and Operation of Machinery) Regulations. Before tho defendant reached for the flowers frem the top of the machine he had opened the gate. This caused the machine to stop functioning. The gate triggered a switch which stopped the machine. It is the same as if the def0ndant had himself switched off the machine. Effectively he did this by using the gate. As that stopped tho machine being in motion, it was not a breach of the relevant regulation if the fencing was not in it's proper place at that point of time. To support an action founded on broach of statutory duty it must be shown that at the time of the accident there was a breach and that the injury arose as a result of that breach. That is not the case here.

9. I now turn to tho question of whether there was negligence on the part of the defendant giving rise to the accident. 'The plaintiff must show, on the ba1ance of probabilities, that the damage was caused, both in fact and as a matter of law, by the defondant's breach of duty. To prove causation in fact, the plaintiff must in principle show that the damage would not have occurrod "but for" tho breach of duty : Clerk and Lindsell on Torts (15th Edn.) 653'.

10. When the plaintiff was employed he was not warned or advised of the dangers necessarily inherent in the operation of the machine. In some cases it may be essential for the employer to givo adequate instructions concerning not only the proper and safe method of doing the job but also the likoly dangers to be wet should there be a departure from that prescribed method. Equally, there will be cases where no instructions or warnings will be necessary at all, particularly to experienced workmen : Wilson v. Tyneside Window Cleaning Co. (1958) 2 Q.B. 110. The plaintiff was an experienced plastic moulding machine operator. He had been oporating such machines since 1967. Before being employed by the defendant the plaintiff had been working on a similar type of machine and he stated that when he was employed the defendant knew that he had previously been working on this and other type of moulding machines. Such a person does not need any warnings or advice about risks with vihich he is throughly familiar : Qualcase (Wolverhampton) Ltd. v. Raynes (1959) A.C. 743.

11. It is not disputed that in the course of working the machine flowers tend to get stuck between the platens ten or twenty time during the day. There have been occasions when the defendant witnessed the plaintiff getting at the flowers from the top of the machine. I accept the evidence of the defendant that the plaintiff was warned against so doing. The plaintiff's co-worker, who was the supervisor of the factory, also stated that on several occasions he had to remind the plaintiff to replace tho grilled fencing after it had been removed by the plaintiff. There were also occasions when the supervisor, noticing that the grill had been removed by the plair-tiff would take it upon himsolf to replace it. Employers in such a case are not expected to keep a constant eye on mature and experienced workmen to make sure they do as they are told : Woods v. Durable Suites Ltd. (1953) 2 All ER 391. ‘But if he (the employer) does all that is reasonable to ensure that his safety system is operated he will have done all that he is bound to do' : per Lord Reid in General Cleaning Contractors Ltd. v. Christmas (1953) 2 All ER 1110 at 1117. A master is under no legal obligation to dismiss his servant because the latter has shown a propcnsity to disregard his instructions.

12. I am unable to infer from the evidence that the defendant failed to provide a safe system of working or that he was heedless of the safety of his workmen or that there was any element of negligence on the part of the defendant. The plaintiff's claim founded on negligence, therefore, fails. It follows that the plaintiff's claim founded on Occupiers Liability must also fail.

13. The decision I have arrived at would not have been any different had the plaintiff removed the protection grill from the top of the machine and later put his hand in to get at the flowers while the machine was in motion. There was some evidence suggesting this to be the case. In such a situation there would be a breach of statutory duty since the machine was not effectively guarded while in motion. In Manwaring v. Billington (1952) 2 All ER 747 the employer gave proper instructions to the plaintiff but the plaintiff disobeyed them and did the work in a way which created a breach of a statutory regulation. Morris, L.J., said at p. 750 :

"I would deem it incongrous and irrational if, on the facts as found by the learned judge, the plaintiff could, in effect, successfully say to his employer : ‘Because of my disregard of your reasonable instructions I have brought about the position that you are in breach of your statutory obligations, and so I claim damages from you because of such breach’."

14. The question must be asked: Has the defendant at fault? It has never been necessary for a plaintiff to show that the defendant's conduct was the whole cause or even the principal cause of the accident. It is enough to show that it made a material contribution. Unless that can be shown no liability arises. In the presont case, I find no fault on the part of the defendant. The plaintiff was alone to blame for the accident. As he was the sola author of his own wrong, it would be unrcasonable to attribute any liability to the defendant even if there was a breach of statutory duty. The plaintiff's claim must be dismissed with costs.