KWAN WING CHEUNG v. HANG SHING PRINTING CO. LTD. AND ANOTHER

HCPI 691/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 691 OF 1998

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J U D G M E N T

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1. These proceedings arise out of an accident at a printing factory on the 31st August 1996 on premises occupied by the First Defendant. It is common ground that the Plaintiff at the time of the accident was a 45 year old printing machine operator employed by the First Defendant operating an offset printing machine recently purchased second hand by the First Defendant from the Second Defendant. The Second Defendant had installed the machine on the First Defendant's premises some 2 days previously.

2. At some stage the Plaintiff attempted to clean revolving water rollers on the machine. He did so while the machine was in operation and his right middle and ring fingers were caught between two rollers and crushed. The machine at the time he attempted to clean it did not have any guard attached to it so as to prevent access to the particular roller mechanism.

The Pleadings

3. The Plaintiff alleges as against the First Defendant that it was negligent inter alia in providing the machine without a proper guard to the dangerous rollers and in its provision of an unsafe system and place of work; further, that it was in breach of its statutory duty pursuant to Regulations 4 and 5 of the Factories and Industrial Undertakings (Guard and Operation of Machinery) Regulations to Cap. 59 and failed to discharge its duty of care as an occupier of the factory premises.

4. The Plaintiff further alleges breach of his contract of employment with the First Defendant which, it is submitted, was in the same terms as the First Defendants common law duty of care to him and relies on identical particulars of breach in that regard.

5. As against the Second Defendant, the Plaintiff asserts breach of a duty of care in the Second Defendant's provision of the machine in respect of which it failed to prevent his use of and access to dangerous parts of that machine, and that it failed to properly instruct him in its use.

6. Both Defendants deny the claims against them and alternatively allege the Plaintiffs own negligence contributed to his injuries. Each Defendant seeks contribution from the other on the grounds of the others negligence pursuant to notices served between them.

Liability

7. Much of the factual basis of this case was not in issue.

8. It was not disputed that the Plaintiff had in the course of his employment with the First Defendant injured his middle and ring fingers whilst attempting to clean the printing machine number 4 Unit water rollers whilst the machine was still in operation. Nor was it in issue that the machine had no guard at that time across the entry point to the roller mechanism. It was common ground that the machine had been provided to the First Defendant by the Second Defendant.

9. The machine itself consisted, for the purposes of this case, of a number of modules comprising a control panel and various rollers involved both in the movement of paper through the machine and in the printing process itself.

10. These rollers comprised inter alia water-rollers which applied a thin film of moisture to other rollers involved in the printing process. There were 4 sets of these water rollers numbered 1 through to 4. Those that injured the Plaintiff were set 4 and they were located low down in the module of the machine shown in the centre of Defence Exhibit D1.

11. Perhaps the primary factual issue which arose on the evidence relating to liability was whether the Plaintiff had removed or been instrumental in the removal of the safety bar across the "nip" of the offending water rollers or whether that bar had been removed or omitted by the employee of the Second Defendant who had installed the machine in the First Defendant's premises.

The Plaintiff's case

12. The Plaintiff in his evidence asserted that on the day of the accident, he had been operating the newly installed machine for only about two days.

13. He said prior to the accident some of the machines ink rollers required cleaning and to do so he had applied kerosene to them whilst the machine was still operating. At some time about the time of doing this, he had been squatting down in the vicinity of the offending water rollers. He noticed some foreign matter on one of those rollers.

14. He said a guard which was supposed to have been installed across the front of the rollers preventing access to them had not been attached to the machine when the machine was installed by the Second Defendant. Accordingly, he was able to gain direct access to the rollers. He attempted to brush the foreign matter away with his fingers but they were caught in the nip of the rollers and crushed. He agreed that he was aware of the danger of touching the water rollers and rollers generally while they were rotating.

15. His evidence was that all the water rollers on the newly installed machine were unguarded, but that before the accident he had not been aware of this. He said on the previous machine because of its different design, no guards were provided to the water rollers. He explained an apparently contradictory phrase in his witness statement to the effect that in his experience, there were steel bar guards in front of the water rollers as relating to experience gained by him when he went to a friend's printing shop some time after the accident and examined a similar machine there.

16. He denied ever having requested LAM Kwok-yum, Bill, the mechanical technician of the Second Defendant to not install or remove the guard to any water roller. He said LAM gave him no instructions as to how to operate the machine and was uncommunicative, but that he was himself already familiar with the operation of the machine except for its new computer keyboard which had, to some extent, been explained to him by another employee of the Second Defendant. He gave somewhat contradictory evidence as to whether or not it was possible to stop the water rollers on the machine independently of the rest of the machine so as to be able to safely gain access to them. He agreed FUNG Yuk-hoi had spoken to him about not removing parts from the machine.

The First Defendant's case

17. FUNG Yuk-hoi was the Managing Director of the First Defendant. He said that earlier on the day of the accident, the Plaintiff had removed a safety cover off the machine complaining it was in the way. This cover was near-by but was not related to the offending water rollers. FUNG told the Plaintiff to put the cover back on the machine and it was replaced. FUNG further told the Plaintiff not to remove any safety devices.

18. He said two days earlier after the Second Defendant's employee, LAM, had completed the installation of the new machine, he had asked him in the presence of the Plaintiff if all the safety devices were installed and LAM had replied in the affirmative. He said after the accident, he had examined the machine and found all of the safety bars to the water rollers missing. He said he had examined the machine before the accident also, after it had been installed but was not sure at that time how many guards there should have been. He was unsure as to whether the guards had been installed prior to the accident.

19. He said after the accident, LAM had returned to the premises of the First Defendant and had located the four missing water roller guards under or near the machine and had then installed them.

20. He said following their installation of the printing machine, LAM, the employee of the Second Defendant, instructed the Plaintiff and other employees of the First Defendant how to operate the machine. He agreed that at one point in time the Plaintiff had complained that LAM had proved unwilling to answer questions about the machine. FUNG agreed that in response to this information from the Plaintiff, he had done nothing.

21. He said that in any event the Plaintiff, who had some 20 years experience in the printing industry, had operated this type of machine before and well knew its operation.

22. According to FUNG, the rollers of the particular machine could be independently stopped whilst the machine was operating.

The Second Defendant's Case

23. LAM Kwok-yum, Bill, was a Mechanical Manager in the employ of the Second Defendant at the time of the installation of the machine in the First Defendant's premises.

24. He said the machine was sold by the Second Defendant to the First Defendant for some $3 m in May 1996 and was delivered to the First Defendant's premises, having been imported from overseas, on or about 17th August.

25. He said it took about two weeks to set the machine up and install it at those premises and that work was undertaken by himself and other staff of the Second Defendant.

26. In his statement, he said that Mr FUNG of the First Defendant assigned the Plaintiff to receive instructions in the operation of the machine and accordingly he explained to the Plaintiff the machine's operation.

27. In his evidence, he said he could not recognise the Plaintiff and did not think he was the same person whom he had instructed. I might say here that I am satisfied that the Plaintiff referred to by Mr LAM in his statement, the Plaintiff in this trial, and the person he referred to in his evidence as the senior printer who he instructed, are one and the same person. It was not contended otherwise at trial. LAM's evidence in this regard however was confused and contradictory with the contents of his statement.

28. He said the Plaintiff seemed to be more familiar with the operation of the machine than he himself and had told him that he had operated the same model of machine before working for the First Defendant and accordingly was experienced with it.

29. He said that after the machine had been installed and at the time he had been attaching to it various guards and safety bars, the Plaintiff had asked him not to install the safety bar at one of the water roller mechanisms. I should point out here that it was common ground during the trial that LAM's reference in evidence as to which water roller guard was the subject of this request was not the guard to the rollers in which the Plaintiff crushed his fingers but rather was the guard to the rollers at Unit 1 at the far end of the machine.

30. LAM, following this request, then did not install the bar and left it with the Plaintiff to install or not install as the Plaintiff wished. LAM said that all other bars or guards were properly installed on the machine, even though the Plaintiff had also requested all other bars to the water rollers be removed. LAM said he had refused this further request.

31. He said the reason he acceded to the Plaintiff's request to not install the safety bar to the water rollers at Unit 1 was that the particular water rollers at that location were out of harms way and difficult to service. So he saw no danger in omitting the guard from that particular set of rollers. He was adamant that he had not omitted the guards from any other water rollers including those at the No. 4 Unit which had injured the Plaintiff.

32. He said later in his evidence that he was not sure if the request not to install the particular roller-guard at Unit 1 had been made by the Plaintiff or his assistant, the No. 2 Printing Operator. He said he had referred to it as being made by the Plaintiff in his statement as he was "guessing".

33. He said whoever had made the request of him had done so in the presence of the other. He said he did not remember whether FUNG had asked him if all the safety guards were installed, but he agreed that he had not told FUNG that one had not been.

34. He said after installation, he remained for the test running of the machine and when he saw that it was operating properly under the Plaintiff's control, he left.

35. He agreed he had spoken little to the Plaintiff or the Plaintiff's assistant, the No. 2 operator, during the installation of the machine as he "did not know if the Plaintiff was from the factory".

Assessment of the Evidence

36. I accept FUNG as a witness of truth. He answered questions in a straightforward and coherent matter. He was candid and did not attempt to minimise his own role or perceived responsibility in these events. The fundamentals of his evidence were not contradicted by either the Plaintiff or LAM.

37. In my view, neither the Plaintiff nor LAM were as reliable. Both gave evidence in part inconsistent with their statements. But so far as LAM is concerned, I am satisfied that in the essentials of his evidence, he was reliable. He was an arrogant and somewhat difficult individual but did not strike me as trying to avoid blame or minimise his own role. He did not dispute that he had given no instruction to the Plaintiff. He could give no sensible reason for not speaking to the Plaintiff. He had obvious difficulties dealing with people and this came through in his evidence.

38. The Plaintiff on the other hand presented as a person whose primary concern was to give evidence in terms suitable to his case. He was on occasion evasive and contradictory in his evidence and more often gave confusing and irrelevant or incomplete answers. Accordingly, I have considerable reservations about the Plaintiff's reliability as a witness.

Findings of Fact

39. I accept from all of the evidence that the Plaintiff was an experienced printing machine operator and had operated this type (or a similar type) of machine previously.

40. He specifically said in evidence that it required experience and skill to clean the moving roller and that he had not dared to touch one until he had been many years in the industry. It is apparent from his own evidence that he was well aware of the dangers involved in touching an unguarded roller. Lack of training was not causative of his action in this regard.

41. I accept also from the evidence of LAM that the Plaintiff asked for a particular guard bar relating to the roller mechanism not to be installed. In my view, LAM is unlikely to have fabricated this evidence in the absence of some such request having been made. His evidence in this regard, both from his statement and in this trial had the ring of truth. His evidence relating to the request for the non-installation of the water roller guard at the No. 1 Unit was detailed and coherent. On the face of it, it would have been much simpler for him if he were fabricating this evidence to simply assert that the Plaintiff requested the non-fitting of the guard to the offending No. 4 rollers rather than for him to make up an apparently irrelevant story about the request being made in respect of water-rollers at the No. 1 Unit. LAM was adamant also that the request had been a joint one by the Plaintiff and his No. 2 assistant and was, in this regard, unsure as to which of the two had actually made the request.

42. The detail of LAM's evidence on this issue was impressive and in my view, convincing. I find that the probabilities are that the Plaintiff made or was complicit in this request so as to allow easier access to the roller mechanism for the purpose of cleaning the rollers at the No. 1 Unit and that the probabilities are that the further removal of the remaining water roller guards, including the guard to the No. 4 Unit water rollers which crushed the Plaintiff's fingers was the Plaintiff's doing or that he was a participant at least in their removal by one of his co-workers.

43. I bear in mind from FUNG's evidence that on the same day of the accident, the Plaintiff had attempted to remove another safety device from the machine nearby the water rollers to the No. 4 Unit. The Plaintiff agreed in evidence that FUNG had had to tell him not to do so. This supported LAM's version of the Plaintiff wishing to remove safety devices from the machine to simplify its operation.

44. Taking all of this evidence together, I am sure that the probabilities are that the Plaintiff had wished to remove devices including safety devices of the machine which hindered its quick operation and so far as the No. 1 Unit water rollers safety bar was concerned had done so either by himself or with his fellow-worker.

Conclusions

45. So far as the Plaintiff's case against the First Defendant is concerned, I am satisfied that the Plaintiff, as I say, deliberately took steps or concurred in the taking of steps to ensure that the roller mechanism guard bar relating to the No. 4 Unit water rollers was not attached so that he or his assistants could gain access to the rollers for work purposes without stopping the machine and opening up the mechanism.

46. Nevertheless, that does not, in my view, establish the First Defendant's satisfaction of its duty of care towards the Plaintiff so far as ensuring a safe system of work is concerned, nor in my view, does it mean the First Defendant has satisfied its responsibility to keep the water rollers properly fenced pursuant to Regulations 4 and 5.

47. The First Defendant cannot delegate its responsibilities to the Second Defendant in this regard. I am satisfied that given the absence of the guard bar from the machine that the offending roller mechanism was dangerously accessible. In this regard, even accepting that the Plaintiff had removed or concurred in the removal of the guards to water rollers, there was no effective inspection of the safety devices attached to the machine by FUNG or any other person for the First Defendant prior to the machine being operated.

48. Nor was there any continuing and sufficiently safe system of work maintained by the First Defendant. I accept that the Plaintiff, as had other workers in the industry to his experience, habitually and at least occasionally used his hands to clean or access water rollers. The Plaintiff's evidence in this regard had a ring of truth. There was no system maintained by the First Defendant to discourage such unsafe practices nor indeed to allow any such unsafe practices to be detected in the first place. In my view, the First Defendant had a duty to establish some system of work whereby such unsafe practices or habitual risk taking was detected and suppressed by proper supervision. In this case, there was none. The Plaintiff in large part was left to his own supervision.

49. Further, in my view, the First Defendant had failed to ensure that cleaning operations of the water rollers were conducted with either the machine switched off or the rollers disconnected. I accept from the Plaintiff's evidence, as supported by that of Mr FUNG, that the Plaintiff worked under considerable pressure of time and worked long hours. That was known to FUNG and therefore to the First Defendant. On the day of the accident, the Plaintiff had been working since 9 a.m. The accident occurred about 11 p.m. The previous day, the Plaintiff had also worked long hours. These long hours, as said by the Plaintiff in his evidence and not contradicted, were necessary for him to complete the workload in the First Defendant's factory. In my view, it must have been foreseeable by FUNG that the Plaintiff could well become careless, or take shortcuts involving unsafe practices or the circumvention of safety apparatus in meeting the undoubtedly heavy time constraints he operated under.

50. In my view, it was not sufficient in the circumstances of this case given the workload of the Plaintiff and the pressure of time under which he operated to simply generally tell him not to remove anything from the machine. Something more was required whether by way of inspection of the machine itself or by way of further and more detailed instruction on its proper use. In any event, I am satisfied the Plaintiff in removing the safety guard or being complicit in the removal of that guard from the water rollers at Unit 4 took that risk so as to be able to perform the work requirements he was obliged to meet in his employment at the factory of the First Defendant.

51. For these reasons in my judgment, the Plaintiff has established his case against the First Defendant pursuant to his claim in negligence on the narrow basis that the First Defendant had failed to provide a safe system of work. Further, I am satisfied the Plaintiff has established a breach by the First Defendant of equivalent implied terms of employment in his contract of employment with the First Defendant. Further, pursuant to his claim for breach of Regulations 4 and 5 of the Guarding and Operation of Machinery Regulations to Cap. 59, I am satisfied that the unfenced or unguarded water rollers were causative of the injuries sustained by the Plaintiff and that the unguarded state of those water-rollers at Unit 4 was in breach of those Regulations. In my view, the First Defendant had not taken sufficient steps to ensure the safety devices were in place on the machine before or during its operation.

52. In respect of the Plaintiff's claim pursuant to the Occupiers Liability Ordinance, Cap. 314, I am not satisfied that the Plaintiff has established a breach of the common duty of care onto him pursuant to that Ordinance in that the First Defendant failed to provide premises which were safe for the Plaintiff to work within. The breach in my view of the First Defendant's duty is in it providing an unsafe system of work rather than an unsafe place of work. The Plaintiff's action rendered the premises unsafe.

53. So far as the Plaintiff's claim against the Second Defendant is concerned, it is restricted to negligence. That claim as particularised inter alia related to the Second Defendant's failure to instruct the Plaintiff in the proper use of the machine and in failing to prevent him having access to dangerous parts of that machine. The Plaintiff, it is common ground, was injured by the unguarded water rollers at Unit 4. LAM, in his evidence, said that the Plaintiff did make a request or was party to a request not to install the guard to the water rollers at Unit 1 and that he, LAM, acquiesced to that request but refused to remove the guards to any other units of the machine.

54. Accordingly, there is no evidence before me that LAM was a party to or was aware of the removal of the guard at the Unit 4 water rollers. The Plaintiff denied in his evidence ever making any such request or knowing of it.

55. The question is whether it should be inferred that LAM did deliberately remove or omit to install the guard at the offending No. 4 Unit water roller. In my view, no such inference can properly be made. The evidence in this regard, it is true, is somewhat confusing but at its face value, LAM acquiesced in the non-installation of only one water roller guard. That water roller unit was unrelated to the accident which befell the Plaintiff at Unit 4 of the machine. As I have said, I have inferred that the Plaintiff himself was a party to the removal of the guard at Unit 4. From all of the evidence given in this case, the removal of the guard at Unit 4 of the machine was, in my view, the Plaintiff's own idea or at least his co-worker's idea which he acquiesced with. There is no evidence before me that the removal of the specific guard at the No. 4 water roller mechanism was anything to do with LAM or accordingly, the Second Defendant.

56. I cannot properly, on the evidence before me, and do not infer that LAM was in any way complicit with the removal of that particular guard. For that reason, the Plaintiff must fail in his allegations of negligence as particularised concerning the Second Defendant's failure to prevent his access to or use of the unguarded water roller at Unit 4. The remaining question is, was the Second Defendant, through LAM under a duty to further warn or instruct the Plaintiff not to remove the guards to the remaining water rollers, including that at Unit 4. There was no contractual or fiduciary relationship between them and none was pleaded. What was alleged by the Plaintiff's particulars of negligence in this regard was effectively simply that the Second Defendant failed to properly instruct the Plaintiff not to use the machine without the water roller guards in place.

57. In my view, the Second Defendant could reasonably expect the Plaintiff would be aware of the dangers attached to unfenced machinery of this sort. Nevertheless, in my judgment there was a duty upon LAM and the Second Defendant to warn the Plaintiff of the dangers of unguarded rollers. This was particularly so after the Plaintiff had asked LAM to remove the guards.

58. But even if there were such a duty, any breach of that duty was not causative of the Plaintiff's injuries. For the simple reason that the Plaintiff was very well aware of the dangers of such unguarded machinery. Indeed, he said in his evidence, he was so aware of that danger that it was only after several years experience in handling such machinery that he dared to touch such unguarded mechanisms for the purposes of cleaning them with his hands. The Second Defendant cannot be liable for failing to tell the Plaintiff something he already knew.

59. Accordingly, the Plaintiff's claim against the Second Defendant must fail.

The Plaintiff's Contributory Negligence

60. In cases such as this, I accept that a momentary lapse of judgment or act of risk taking is not necessarily such as to amount to negligence on the part of a worker in an environment such as the Plaintiff worked in.

61. But in this case, I must conclude on the probabilities that the Plaintiff removed or was complicit in the removal of the guard to the water rollers which injured him and which he had removed so as to be able to perform that sort of act which resulted in his injury.

62. He knew of the risks involved in this sort of activity and had adopted them into his work practices.

63. In my view, the deliberate exposing of the dangerous rollers so as to be able to perform the activity which resulted in the injury made that act itself, even if momentary, negligent. I take into account the Plaintiff removed the roller guard so as to be more quickly able to perform his work for the First Defendant.

64. But given the level of apparent risk involved and the causative potency of the circumstances created by the Plaintiff, I assess his share in the responsibility for the damages occasioned at 70%.

Quantum

The Plaintiff's Injuries

65. Dr MAO Wen-chee was called for the Plaintiff, Dr CHUN Sin-yeung by the First Defendant.

66. Dr MAO examined the Plaintiff in May 1998 and Dr CHUN in February 1999.

67. I think it is fair to say that the doctors in their evidence were not far part in their findings. It was common ground that the Plaintiff had suffered crush injuries to the tips of his right middle and ring fingers with a considerable loss of flexibility in the distal interphalangeal joint of both fingers. There was a loss of surface sensitivity at the tip of the ring finger.

68. One issue upon which they joined was the question of the loss of strength occasioned by the Plaintiff's injuries to his right hand. Dr MAO said that when he examined the Plaintiff in May of 1999, he found him to have a 25% loss of strength in that right hand. Dr CHUN when he examined the Plaintiff in February 1999 found that the loss of strength in the Plaintiff's right hand was somewhere about 50%.

69. In Dr CHUN's view, there was no clinical reason why there should have been a lessening of strength in the Plaintiff's hand over that period between the two examinations. Dr CHUN's reasoning in this regard was compelling as was his conclusion that the Plaintiff simply had not tried to the best of his abilities in the hand grip test he had been subjected to in February 1999.

70. Both doctors agreed the Plaintiff reported continuing pain, particularly when carrying heavy loads in his hand. Dr CHUN said it was unusual for an injury of this sort to result in the "splitting" pain reported by the Plaintiff and thought such pain medically improbable given the nature of the injuries.

71. Dr MAO thought it probable the Plaintiff would experience some pain but agreed the report of pain was subjective. He did not categorised the nature of the pain he thought probable the Plaintiff would experience.

72. I find the Plaintiff still does suffer some pain in his fingers and that this is describable as a pain in the nature of an ache or at least of something less than splitting pain. In my view, the Plaintiff exaggerated his complaints to Dr CHUN and while he has suffered some pain and loss of strength in his right hand, it is not of the levels he represented to Dr CHUN. I conclude the Plaintiff has suffered some loss of utility in his right hand and some loss of strength in respect of that hand so as to make it uncomfortable for him to carry heavy loads over a period of time in that hand. I accept also that when he does he feels pain from that hand. In my view, however, the loss of utility and the degree of discomfort and pain he suffers is considerably less than he represented in evidence.

73. The Plaintiff is still capable of daily use of that hand without discomfort or pain and it is only when he carries a heavy load over some time that physical problems with the use of the hand arise so far as discomfort or pain is concerned. I am also satisfied that so far as the degree of utility of the hand in terms of flexibility of the finger tips that has been suffered is concerned, that loss of utility does not effect the Plaintiff's manipulation in any substantial way of the sort of controls associated with printing machines.

PSLA

74. This has been agreed at $250,000.

Pre-Trial Loss of Earnings

Period of Full Loss

75. The Plaintiff was on sick leave for a period of 7 months following the accident. There was no challenge mounted to this period by the First Defendant and I accept it on the evidence before me as a period of full loss. Nor is it in issue that the Plaintiff's pre-accident earnings were at the level of HK$32,000 per month.

76. The period of full loss is therefore following from the date of accident on 31 August 1996 to the date of the resumption of work by the Plaintiff on 1 April 1997, that is a period of 7 months at $32,000 per month, a total of $224,000.

Period of Partial Loss

77. Between 1 April 1997 and the date of trial is a period of 30 months.

78. During the first 8 months of that period, the Plaintiff returned to work at the First Defendant's company at the same premises in his job as a machine operator. He again worked long hours and earned at his pre-accident level of income. Between 1 April 1997 to 22 November 1997, he earned an average monthly income of $34,326.

79. Thereafter the Plaintiff worked at various employments, including from 16 December 1997 to 15 March 1998 (a period of 3 months) another job as a printing machine chief operator, on this occasion earning $17,600 per month as his basic monthly wage. Other jobs he took in that time included a position as a No. 2 operator, or assistant operator, of a printing machine and various other jobs as watchman and messenger.

80. In my view, the period of his working as a chief, or No. 1, printing machine operator is telling. That was for a total of 11 months.

81. Of that, he managed his old job for a period of 8 months. This included, again, lengthy overtime periods which effectively doubled his basic salary.

82. I accept from the evidence of Mr FUNG of the First Defendant that the Plaintiff left the First Defendant's employ after his return from sick leave because of matters other than his work performance and that the Plaintiff's work had been satisfactory.

83. I accept also, however, the Plaintiff's evidence that the long hours of work caused him some pain and discomfort. His evidence in this regard is supported by the medical evidence of both Dr MAO and Dr CHUNG who both found impaired utility and some loss of strength and sensitivity in the Plaintiff's right hand and fingers. Doctor MAO thought that the Plaintiff's report that he experienced pain in the heavy use of his right hand was consistent with his injuries.

84. In my view, the Plaintiff's own evidence notwithstanding, his employment history after his return to work after the accident demonstrates his capability of performing the duties of a No. 1 Printing Machine Operator satisfactorily. The difficulty I accept the Plaintiff does face is that the longer hours of work associated with his pre-accident levels of overtime now cause him some significant pain or discomfort so as to reasonably prevent him undertaking such hours of work again. The thrust of his evidence in this regard was that he could only perform a certain number of hours work before he did experience discomfort with his right hand. From his work history, however, particularly with Sunny Printing where he worked no overtime and earned only a basic salary per month of $17,600. I am satisfied the Plaintiff is capable of working basic hours as a first operator of a printing machine. He took this job after leaving the First Defendant's employ.

85. Accordingly from 22 November 1997, the date when he left the First Defendant's employment after his return from injury to the date of trial, I find the Plaintiff was reasonably capable of working as a printing machine chief operator at the same basic monthly rate as he earned at Sunny Printing as at March 1998, that is $17,600 per month.

86. I reject the Plaintiff's evidence that he left his Sunny Printing employment because of his inability to do the job and the necessity for him to seek treatment from doctors. His work history is against his evidence in this regard. In my view, the Plaintiff was now of a mind to concentrate his efforts on the preparation of his case for the purpose of this hearing rather than work and mitigate his loss. The Plaintiff in his own evidence agreed, albeit, at a later date, that he had selectively worked as a watchman so as to allow him sufficient time to prepare his case for this trial during the daytime. In that regard, he ceased working as a messenger because it had not provided him with sufficient time to do so.

87. On my findings, the Plaintiff's pre-trial partial loss amounted to the differential of his agreed pre-trial multiplicand of $33,850 per month less the amount he would have earned of $17,600 per month had he properly mitigated his loss.

88. That is a loss of $16,250 per month for the period of time from 22 November 1997 to trial, i.e. 22 months totalling $357,500.

Other Special Damages

89. These are agreed at $14,287.

Future Loss of Income

90. Mr LAI for the Plaintiff has submitted a multiplier of 8 is appropriate. Mr CHAN for the First Defendant does not take issue with that figure. In my view, 8 is an appropriate multiplier given the Plaintiff's age and the nature of his work prior to the accident. The notional level of the Plaintiff's pre-accident earnings at the date of trial has been agreed at $35,700 per month.

91. In my view, given the reality of the economic circumstances in Hong Kong since the 15 March 1998 when the Plaintiff was earning $17,600 per month with Sunny Printing, that figure does not have to be increased to allow for inflation up to the point of trial.

92. Accordingly, I take that figure as the monthly earnings available to the Plaintiff as of trial. The difference between the sums of $35,700 and $17,600 represents the net monthly loss of the Plaintiff as of the date of trial, i.e. $18,100 per month. Applying the multiplier of 8 that arrives at a sum of $1,737,600 representing the Plaintiff's future loss of income.

Economic Loss

93. In the damages pleaded in the Statement of Claim, the Plaintiff claimed for loss of earning capacity. In his Revised Schedule of Damages, no such claim was made. Nor was it raised in his submissions. Nevertheless in the First Defendant's submissions, Loss of Earning capacity was dealt with.

94. I take the view that the Plaintiff did not abandon this head of damage as it remained in his Statement of Claim throughout, and that the First Defendant was not prejudiced by the Plaintiff's failure to incorporate it into his Revised Schedule of Damages as it was fully dealt with by the First Defendant in his submissions.

95. Given the nature of the disability suffered by the Plaintiff and the loss of utility of his right hand and bearing in mind the now somewhat more restricted ability to work within his trade, in my view, he will suffer some general disadvantage in the labour market.

96. I adjudge a sum of $100,000 representing approximately 3 months earnings of the Plaintiff at his pre-accident level of income is a proper award in this regard.

97. I summarise the award of damages to the Plaintiff as follows.

		After adjustment for contributory negligence
PSLA	$250,000	$75,000
Pre-trial Loss of Earnings
Period of Full Loss	$224,000	$67,200
Period of Partial Loss	$357,500	$107,250
Other Special Damages	$14,287	$4,285
Future Loss of Income	$1,737,600	$521,280
Loss of Earning Capacity	$100,000	$30,000
Total	$2,683,387	$805,015

98. The gross sum is reduced by 70% to reflect the Plaintiff's contributory negligence so far as his damages are concerned, that arrives at a sum of $805,015.

99. From this sum is deducted the Employees Compensation Payment of $176,165.

100. The net sum is then $628,850.

101. There will be interest on the award of $75,000 for pain suffering and loss of amenities at 2% since the date of the writ to the date of judgment as agreed by the parties. There will be interest on the special damages at half judgment rate from the date of the accident to date of judgment as agreed by the parties. I make an order nisi that the Plaintiff has his costs of the action as against the First Defendant to be taxed on a party and party basis if not agreed. I order costs nisi against the Plaintiff for the Second Defendant to be taxed on a party and party basis if not agreed.