YING ZHAN CHUN v. I.N.H. LTD.

HCPI195/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.195 OF 1998

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J U D G M E N T

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The Claim

1. The Plaintiff was a former employee of the Defendant. She was a machine operator. On 3rd February 1996, she suffered injuries to her right hand in an industrial accident. She brings this action for damages against the Defendant. The present hearing is on the issue of liability only.

The accident

2. The machine operated by the Plaintiff was a moulding machine making plastic products. She had to operate three similar machines all at the same time. At the time of the accident, the Plaintiff put rubber materials onto the machine, she then discovered a small piece of waste rubber inside the machine. The waste in the machine had to be removed, otherwise it would cause the finished products to be deformed. She used a compressed air jet to blow the waste off but was unsuccessful. She was then standing in front of the machine on a platform. As she could not reach the waste from the position at the front, she stood down from the platform, went to the right hand side of the machine and through a small opening inserted her hand inside the machine to remove the waste. Then suddenly she saw the machine came down on her hand and her hand was trapped by the platens. She screamed for help. A co-worker who came for assistance unfortunately pressed a wrong button on the machine and her hand was further compressed by the machine.

3. She had been told by Mr Mo, her supervisor, and one Mr Lee to use her hand to remove the waste. No one had forbidden her to use the opening at the right hand side of the machine to remove the waste. In fact Mr Mo told her to use the opening to remove the waste. She was told to use an air jet and hand to remove the waste. When she removed the waste, she had not pressed any button to start the machine or done anything to the machine which caused her hand to be trapped. She did not know why the platens suddenly moved and trapped her hand.

Plaintiff's case consistent

4. While her evidence in chief was short, she was extensively cross-examined. She was asked about the various platens in the machine, their positions and movements and how the machine operated. Despite the lengthy cross-examination, she was consistent on how the accident occurred. The consistency is shown in her statement made to the Labour Department on 2nd May 1996 on how the accident occurred. Likewise, in her witness statement, she described how the accident occurred which on the whole is consistent with her evidence. At my direction, the witness statement was not adopted as her evidence in chief. She gave oral evidence.

Cross-examination on discrepancies

5. The Plaintiff was cross-examined on some of the minor discrepancies between her oral evidence and her witness statement. In her witness statement she stated that the waste was stuck on the lower mould, whereas in her evidence, the area she identified was on the upper part inside the machine. This, however, does not affect her evidence at all. She maintained the evidence she gave in Court was the correct evidence.

6. The witness statement also seemed to suggest that she started to clean the waste after she removed the finished product. This is not a matter of significance. The removing of the finished product and the loading of the raw material followed one another. I accept that it was when she put the raw material on the machine she noticed the waste.

7. Her witness statement further referred to her using a brush to clean the waste. The Plaintiff said she had a small brush. She used it to clean the other parts of the machine, namely, the headpins, but she was using her right hand to clean the waste when the accident occurred and she was holding the brush in her left hand. I accept her evidence. The discrepancies in her witness statement may well be due to the misunderstanding of the person who took the statement from her. The Plaintiff is not a Cantonese speaker, she came from Shantung and speaks the Shantung dialect and Putunghua with an accent.

8. She was also cross-examined on the operating procedures she mentioned in her statement to the Labour Department which did not mention about pressing another button to activate the platens. None of these, in my view, affect my assessment of the Plaintiff as a credible witness. She was only on the job for about five months when the accident occurred and it is now 31/2 years after the accident. It is not surprising that she cannot now recall details concerning the machine.

Plaintiff is a truthful witness

9. I accept the Plaintiff as a truthful witness and the accident happened as she described. She impressed me as a simple, straightforward young woman. She was quite ready to admit that she was not sure about things when she was asked about certain matters. She did not lay blame on others when she was in fact asked by Mr Lim whether the discrepancies in the witness statement was due to the misunderstanding of her lawyer. She simply said that what she said in Court was correct.

Defendant's case

10. The Defendant did not call any witness who was present at the accident and witnessed the accident. It was suggested that the Plaintiff had started the machine and the machine was already in motion when she attempted to beat the movement of the machine by inserting her hand into the machine to remove the waste. It was further suggested that the button which activated the machine was accidentally pressed by the Plaintiff.

The Plaintiff did not start the machine

11. The answer to these is that there is simply no evidence on these matters. The Plaintiff denied that she had started the machine. She said that if she had started the machine, by the time she came down from the platform and inserted her hand to the opening at the right side of the machine, the platens would already have been closed together. I accept her evidence. It would be crazy - to use the words used by a judge in a case relied by Mr Lim - for the Plaintiff to attempt such a manoeuvre. Having observed the Plaintiff giving evidence in the past two days, I just do not find her to be that kind of person who would disregard her personal safety by inserting her hand into the machine when it was in motion.

12. It was suggested that the various platens were in separate positions outside the machine when she was cleaning the machine, and following the cycle of operation, if the machine was activated, then the platens would have to come down first and her hand would not have been trapped. The answer is simply that the Plaintiff did not notice that the waste was there when the platens were in the outside position. Factually, the platens had already come down when she loaded the rubber and then she saw the waste. If the machine was activated then, the next cycle would be for the mould to slide into the machine and for the other platens to close together. The Plaintiff's hand was indeed trapped by the moulds.

13. In the Plaintiff's statement given to the Labour Department, she said that after she loaded the rubber, she had not pressed the green button which would activate the machine. She agreed that she provided this answer to the Labour Department but she disagreed with the suggestion that she considered it important to stress the point that she had not pressed the green button. Mr Lim submitted that the Plaintiff was someone who was not well educated and the only reason why she mentioned about not having pressed the button was because she had indeed started the machine by pressing the button first.

14. I do not find that there is anything sinister in the answer provided by her in the statement or that she was trying to cover herself. In the statement she had been describing the various procedures in the operation of the machine. She was then asked about which procedure she was doing when the accident occurred. She answered : "The first procedure", and then she explained what had happened. The first procedure described by her earlier involved the loading of the rubber and pressing the green button for the machine to function automatically. To state in her answer that she had not pressed the button after she loaded the rubber was only natural when she gave the answer that the accident occurred during the first procedure.

Accidental pressing of the button

15. As to the accidental pressing of the button, I accept the evidence of Mr Law, the Plaintiff's expert, that the construction of the button would prevent it from being accidentally activated.

Why did the machine suddenly start

16. Mr Lim submitted that the machine was new, it was half a year old when the accident occurred; it was a modern machine and apart from the accident there was no previous occasion and has never been any further occasion when the machine suddenly activated by itself. He submitted that considering what had happened and the timing of the accident, a more likely cause was that the Plaintiff activated the machine herself.

17. I have found on the facts that the Plaintiff had not intentionally or accidentally started the machine. On the cause of the platens suddenly activated and trapped the hand of the Plaintiff, Mr Lee of the Labour Department said that the possibility of transient machine failure could not be ruled out. Mr Law, who had not examined the machine, stated that the failure may be due to instant electronic failure of the control button or of the electrical wiring installation, or transient failure in the hydraulic system. The failure of the electrical wiring in the circuit board may be caused by humidity. Mr Law said that this occurrence is quite common. In the past 13 years he had encountered 20 such cases. These failures were not capable of physical proof.

18. The Defendant had not called any expert evidence on why the machine suddenly became activated. I accept the evidence of Mr Lee and Mr Law that there was indeed a sudden transient failure of the machine which caused the platens to close.

Negligence of the Defendant

19. The Defendant as the employer of the Plaintiff was clearly negligent to instruct the Plaintiff to use her hand to remove the waste from the opening. Both Mr Law and Mr Lee of the Labour Department stated that they were of the view that the employee should be provided with a long handle brush or grab to remove the waste so that her body would not have to come into contact with the moving parts of the machine. The Defendant was negligent in failing to guard the opening at the right hand side of the machine. While there were sensors at the front of the machine which would stop its operation when a hand was inserted at the front, there was no safety device at all for the opening at the side. Mr Lee said that a interlocking device should be installed at the opening. This would stop the machine when the device was opened.

20. The Defendant was convicted of the offence of failing to provide a guard to the dangerous parts of the machine, contrary to Reg.5 of theFactories and Industrial Undertakings (Guarding and Operation of Machinery) Regulations, Cap.59. It pleaded guilty to the offence. The position of the opening clearly constituted an access to the inside of the machine which consisted of moving parts. The nature of the Plaintiff's job required her to remove the waste from the opening. There were parts of the machine which could not be reached at the front. All these clearly gave rise to a reasonable foreseeable hazard to the Plaintiff.

Liability established

21. I find that the Plaintiff has established her case on liability. The Defendant had failed to provide a safe machine or a safe system of work for the Plaintiff. Liability on its part is admitted by the Defendant. The only issue raised is that of contributory negligence of the Plaintiff. In my view there is no question of contributory negligence on the part of the Plaintiff because there is simply none. The two cases relied by Mr Lim on contributory negligence are clearly irrelevant on the facts of this case. Accordingly, I gave judgment to the Plaintiff on liability, with damages to be assessed by the Master.

[Submission on costs]

Costs to be paid by Defendant on common fund basis

22. While a defendant is entitled to assert its legal right and to defend itself, I am surprised that the Defendant, who was convicted of a factory regulation offence and who has called no eye-witness to the accident and adduced no expert evidence to respond to the Plaintiff's expert, would go to such length as to defend its right. I am of the view that the way the Defendant put the Plaintiff to prove her case clearly justifies costs to be taxed. Costs of the trial on liability is to the Plaintiff, to be taxed on common fund basis.