TANG SHAU TSAN v. WEALTHY CONSTRUCTION CO. LTD.

HCPI 1092/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1092 OF 1998

_______________

________________

_______________

J U D G M E N T

_______________

1. These proceedings arise out of an accident at work sustained by the Plaintiff in the course of his employment with the Defendant on 8 May 1996. The Plaintiff, who was then aged 43, is a carpenter by trade, and had been in the employment of the Defendant for just two days, since 6 May 1996.

2. The Defendant is a construction and decoration company, and was then carrying out extensive fitting out works at the premises of Duty Free Shoppers in Hankow Road, Tsimshatsui.

3. On 6 May 1996, the Plaintiff was told by Mr Chan Wing Kin, one of the directors of the Defendant, to make a circular cupboard, for which he was given a sketch to show him what was required. Mr Chan then took him to the Defendant's workshop at Yau Tong where he left him. The Plaintiff left some wood there, and as it was already late, went home. He went back to the workshop the next day and worked cutting wood by himself, the other workers all being employed at the Tsimshatsui site. He had some problems with the machinery there, which he found to be rather old, and complained to Mr Chan. However, he was told that all the newer machinery was being used at the site, and that he should proceed with the cupboard. He continued to work that day and returned there on 8 May.

4. On that day, he had cut a piece of wood into roughly a circular shape with a jig saw, and needed to shape and smooth the edge to make it precisely round. To do this he used a vertical spindle moulding machine, the main body and motor of which was mounted under the work bench, with a spindle protruding through a hole on the surface of the bench with cutting edges on it which revolved at high speed. There were two guide boards either side of the spindle and he placed the round board on which he was working on to the table against the guide boards and spindle which turned the piece so that the edge was ground down on the spindle. At some point he heard a strange noise coming from the machine and was about to reach for the switch under the table to turn it off, when his left hand on the edge of the wood became dragged into the spindle amputating the end of his left index finger. He either pulled his hand back fast to free his finger, or jerked backwards, and fell on to the floor.

Liability

5. It is the Defendant's case that the Plaintiff was using the wrong machine in the wrong way to carry out his task, and, as an experienced carpenter, he should have known the correct method. It is contended on their behalf that he should have been using a small hand-held moulding machine, rather than the fixed vertical spindle machine, and what he was doing was dangerous, as, they say, he must have known. The Plaintiff, however, says that he was using the usual method for a piece of wood of that size and thickness.

6. For a number of reasons I accept what the Plaintiff says. The piece of wood in question was about 19mm thick. The small hand-held machine, not only had a spindle of just 6mm, needing three passes round the edge to cover it, and even then, as a matter of common sense, it is unlikely that a good finish could be obtained, but it was considerably less powerful. In addition to that, in order to use it in the way suggested in evidence by the Defendant's Mr Chan Wing Bun, it would have to be attached to a plank by screws, the plank fixed to the centre of the wood so that it could rotate on a pivot, and then moved round the piece of wood three times, no doubt with necessary adjustments after each time. A time-consuming process with the likelihood of a less than perfect finish. The vertical spindle machine, however, was already set up, only needed turning on, the wood placed against it and turned until it had done a complete revolution, trimming and smoothing the edge, in a matter of some 30 seconds.

7. The Plaintiff was, as I have said, an experienced carpenter, and I have no hesitation in accepting that this was the correct and usual way to carry out this task. There was some suggestion by counsel for the Defendant and their Mr Chan in evidence that the larger machine could also have been used safely as a hand held machine in the same way as the portable. This again I reject. This machine weighed at least 6 kilos and possibly more, being an older model, and is clearly intended to be used in a fixed position, as confirmed by Mr Chiu Pui Lam, the factory inspector. It would not be sensible, even if it were possible, to handle such a heavy machine in the same way as the small portable, and it is easy to envisage a far worse accident occurring were the worker to lose his grip on it while it was in operation.

8. It is common ground that a machine such as this should have a guard so that, as far as possible with the normal use of it, no part of a worker's body came come into contact with the moving spindle. Regulation 15(1) of the Factories and Industrial Undertakings (Woodworking Machinery) Regulations reads:

(1) The cutter of a vertical spindle moulding machine shall, where practicable, be provided with the most efficient guard having regard to the nature of the work being performed.

(2) For such work as cannot be performed with an efficient guard for the cutter, the wood being moulded at a vertical spindle moulding machine shall, where practicable, be held in a jig or holder of such construction as to reduce as far as possible the risk of accident to the person working the machine.

(3) A suitable "spike" or push-stick shall be kept available for use at the bench of a vertical spindle moulding machine.

9. It is similarly not in dispute that there was no guard at all on this machine, or available for use with it in that workshop, and no evidence that the equipment under (2) and (3) was provided or available. The Defendant is therefore clearly in breach of Regulation 15, at the very least by failing to provide such a guard. Mr Chan in his evidence accepted that it was dangerous to use this machine without a guard as the spindle was exposed and it was very powerful, but tried to say that the Defendant relied entirely on the Plaintiff's experience and did not expect to have to give instructions as to how he carried out his work, neither did he give any warning to him about this machine. However, it was not Mr Chan who took the Plaintiff to the workshop, but his brother Mr Chan Wing Kin, and as the latter did not give evidence, there is nothing to challenge the Plaintiff's evidence that he was not warned by him either of the danger of this machine, nor told not to use it, nor given any particular instructions as to the machinery in the workshop.

10. Mr Ramanathan for the Defendant has sought to persuade me that, in spite of the lack of a guard, and any instructions and warnings, the Defendant was entitled to rely on the experience of the Plaintiff who was familiar with the machine and who should not need such instructions and warnings about risks with which he ought to be familiar, and in support of this drew my attention to the decision of Remedios DJ in Chui Yu Yau v Chan Pak Luk t/a Fung Lok Plastic Factory [1987] 3 HKC 339 where the judge came to a similar conclusion in respect of a plastic moulding machine operator. I have no difficulty in distinguishing that case from this. There the learned judge found that there was a proper guard in place, and accordingly no breach of statutory duty by the employer, although no-one could offer an explanation as to how the accident happened with the safety guard operative. The Plaintiff there was accordingly working on a machine which was not inherently dangerous, had been warned not to clear the machine in a particular way, but still did so in a manner which he knew would expose him to a risk of injury.

11. In this case the machine was unguarded and dangerous, there was no warning to the Plaintiff not to use it, and it was the obvious and usual machine to use for the task he had to perform. In effect, if he was to carry out the instructions of his employer, he had no choice but to expose himself to the danger of the machine available. In addition, he was left to work by himself, with not even occasional supervision to check that all was as it should be.

12. I have no hesitation therefore in finding the Defendant guilty of negligence and in breach of statutory duty.

13. Before leaving this part I would mention the additional claim by the Plaintiff that the worktable was incorrectly constructed and his foot caught under a horizontal bar, causing him to fall backwards. There was no criticism from the factory inspector that the table was not a proper one, and I found the Plaintiff's case on this unconvincing. In particular, it seems to me likely that, standing as he was holding the edge of the round board, he must have been several inches from the side of the table. When his finger was caught, the natural reaction would be to jerk backwards, and I consider it more likely that, in so doing, he tripped or fell from the momentum thereby caused, not from catching his foot on the table, and landed on his buttocks or back on the floor. I am not prepared to apportion any additional liability on the part of the Defendant from the construction of the table.

Contributory negligence

14. It is contended on behalf of the Defendant that, as a carpenter of some 27 years experience, the Plaintiff should bear a substantial responsibility for this accident, that he should have been aware of the risks and avoided them. However, one has to distinguish between a workman deliberately taking risks, possibly as a short cut, where he is paid on piece work and wishes to achieve as much possible in the time available, and one who is using the only method provided to do the best job he can. I have already found that the machine being used was the correct one for the task the Plaintiff was required to do, and was the only one available. What should he have done? He was after all, whatever the length of his experience, still an employee, and one of only two days standing at that. It would be unrealistic to expect such a worker to refuse to work with what was available and to demand from his employer a properly guarded machine before he would start. He either had to do the job with what was available, or, at least until proper equipment was supplied, not at all.

15. I would add that there is no evidence that the experience of the Plaintiff was ever put to the test. It was merely accepted by the Defendant. None of his work, or working methods was apparently seen or observed to see if his skill matched the experience he claimed. They did nothing to ensure that such an employee, left to work unattended, would be up to the standard to be expected of a carpenter of long experience, and in an environment where, as a result of the Defendant's negligence and breach of statutory duty, danger had been created.

16. The point of regulations in respect of machinery such as this is to put responsibility on the employer to protect those in his employment. Equally, if a guard is provided, Regulation 19 of the same regulations puts a duty on the employee to use it. Here there can be no such duty on the employee as no guard was in fact provided. The only question therefore is whether I should ascribe a similar duty on him under Common Law to avoid the danger to which his employer had exposed him. On the one hand it is argued for the Defendant that his experience should have enabled him to avoid the danger. Mr Shum, for the Plaintiff, however, has pointed out the tenor of a number of authorities to the effect that the employee should not be expected to do what the employer has failed to do, and thereby defeat the object of the regulations. As Lord Tucker said in Stavely Iron & Chemical Co. Ltd v Jones [1956] AC 627 at p. 648 when referring to the principal that, where there is a breach of statutory duty, the standard by which the Plaintiff's contributory negligence is judged is less exacting than that used for ordinary negligence:

"This is not so illogical as may appear at first sight when it is remembered that contributory negligence is not founded on breach of duty although it generally involves a breach of duty and that in Factory Act cases, the purpose of imposing the absolute obligation is to protect the workman against those very acts of inattention which are sometimes relied upon as constituting contributory negligence so that too strict a standard would defeat the object of the statute."

17. I am satisfied that in this case what the Plaintiff did, which caused his finger to come into contact with the cutting edge of the spindle, cannot be described as anything other than the sort of inadvertence or momentary inattention from which the regulation was designed to protect him. He was not in my view deliberately taking an unjustified risk, and I find that in the circumstances of this case I am unable to attribute any part of the blame for the accident to him.

QUANTUM

18. The Plaintiff claims that his injuries as a result of this accident fall into two parts: the amputation injury to his left index finger, and the injury to his back which he says hit the ground when he fell backwards.

19. While there is no dispute about the first injury, although the extent of the disability thereby caused is in issue, the Defendant does not accept either that the Plaintiff has suffered a serious injury to his back, nor that any injury that there is was caused other than by natural degeneration or a congenital condition from which he was already suffering.

20. Following the accident, the Plaintiff was taken to the United Christian Hospital, and I have seen three reports from that hospital, all dated 1997 and presumably taken from the hospital notes as none of the doctors who signed the reports state that they saw him themselves, or are reporting their own recollections. These reports all refer to the amputation of the tip of the left index finger and the Plaintiff's complaint of back pain. Two refer to "sprain back" and as a result of the complaint, a CT myelogram was performed on his back on 10 December 1996 which revealed a bulging disc at L4/5 level and bilateral L5 nerve root impingement. He underwent a course of physiotherapy for his back pain for about 8 months with some improvement.

21. The Plaintiff was examined by Dr Philip Mao in June 1997 when he complained that he was still suffering from pain in the lower back with radiation down both legs, particularly the right leg. However, Dr Mao found that, apart from slight limitation in forward flexion, all movements of the back and lower extremities were within normal limits and sensation was not affected. However, in evidence he said that he was satisfied that the pain reported by the Plaintiff was not only caused by nerve pressure in the spine, but that this was a result of the injury he received in the fall. Dr Mao had not seen the Plaintiff since June 1997, and had not had the benefit of seeing the latest reports of Dr Shroff, who examined the Plaintiff on behalf of the Defendant, and the occupational therapy report prepared by Alice Tsang Lau Kit-Ping, in June and May respectively this year.

22. Dr Shroff is adamant that any defect of the spine from which the Plaintiff now suffers is caused by degenerative disc disease, and not related at all to the accident. He points to his MRI findings in his report of 22 May 1998 which he says shows flattening of the thecal sac at L2/3, L3/4 and L4/5 due to short pedicles, the lengths of bone joining the transverse process of the spine to the vertebral body, facet joint degeneration and ligamentum flavum hypertrophy. He says that the fact that the Plaintiff made no complaint of back problems before the accident, but did so immediately afterwards, is pure coincidence, and that he would have suffered back pain at some stage with his existing conditions. He goes on to say that a bulging disc is a normal finding, not necessarily causing problems, and not caused by the accident. However, he does say in the same report that the left L5 nerve root is most likely compressed and that there is a right paracentral disc herniation at the same level which is compressing the thecal sac and the exiting right nerve root. He felt also that each time he examined the Plaintiff, he was not entirely genuine in his complaints and his efforts in the tests.

23. It is not easy when faced with opposing opinions from two eminent doctors to find where the truth lies. I am satisfied that the Plaintiff did receive a blow to his back when he fell, that there are signs of degenerative changes to his back which had not caused any problems before that, and that he now has some back pain, the extent of which I shall deal with shortly. I have to say that, with the greatest respect to Dr Shroff, I find the coincidence of his back problems appearing immediately after the accident too much to accept. It is clear from the evidence that there are degenerative changes to his spine, but the effect of these is comparatively minor now, and was asymptomatic prior to the accident. While it is likely that the blow to his back was not the sole cause of any back problems he has now, at the very least it must have triggered the problems which may otherwise have remained asymptomatic for the rest of his working life.

24. In order to see what effect the accident has had on the Plaintiff, it is useful to look at the very comprehensive occupational therapy evaluation report by Ms Alice Tsang. Her tests were conducted over some 16 hours, many were repeated to make sure the findings were accurate, and many are designed so that the person being examined is not able to affect the results to his advantage. The end result is, as far as possible, a realistic assessment of what the Plaintiff can do and the effect of his injuries on him both in his daily life and the working environment. It is apparent from this report that the Plaintiff is a well built, strong man with a good grip in both hands, despite the loss of the tip of his left index finger, capable of carrying reasonable loads and climbing ladders while doing so. Although he reported pain on carrying out some of the tests, the levels of pain were usually low, and Ms Tsang considered that he was capable of returning to work with the only reservation being that he would be limited in his capacity for heavy loads which he should not handle on a regular basis. This accords with the view of Dr Mao, who said that the Plaintiff could do any work he wished provided that he avoided strain on his back.

25. The Plaintiff himself said that he now has mild pain in his left leg and sudden pain in his right leg which sometimes causes him to fall over. He also complained of numbness in his legs at night, which he tried to deal with by means of a vibrator, but which has caused him to fall when answering calls of nature in the night. None of these complaints are borne out strongly by the medical evidence, and do not appear in any event to interfere with his daily activities. I have had the advantage of seeing a video arranged by the Defendant's legal representatives which showed the Plaintiff on three days going about his affairs, with apparently no difficulty or discomfort, and no need to rest or sit down. He says that there are a number of activities that he can no longer do, but I am satisfied from the medical and other evidence here that there is an element of exaggeration. He does not complain of any constant or chronic pain, he is a relatively fit, healthy and well built man, his only problems now being the tip of his finger which is numb, and can be painful if knocked, and a back condition which he has to treat with care, but which otherwise is not a major disability.

Pain suffering and loss of amenities

26. The Plaintiff's principal injury here was the amputation of his left index finger, which must have been a painful and distressing injury, but which now is more of an irritation than a disability, limiting his dexterity to some extent, and affecting the pinch strength of that hand. The injury to his back is clearly not a major problem, having improved considerably after treatment and physiotherapy, but something which he has to watch to ensure that it does not get worse.

27. These injuries clearly do not reach the serious injury category as described in the Lee Ting Lam case, and I find that an appropriate award here is $300,000.00.

Pre-trial loss of earnings

28. The Plaintiff was earning $680.00 a day at the date of the accident and expected to work, had the accident not intervened, 26 days a month, earning $17,680.00. He was on sick leave from the date of the accident until 26 June 1998, a total of 25.75 months, and in my view is entitled to full loss of income for this period. It is the Plaintiff's case that were he working in the same trade now he would be earning $770.00 a day. This is not challenged by the Defendant. Indeed, their original figure in Mr Chan's witness statement puts it slightly higher than that.

29. The situation is complicated somewhat by the evidence of both the Plaintiff and Mr Chan that the economic recession has meant that there is less work available now and daily paid workers such as the Plaintiff would not be able to work 26 days a month. The Plaintiff puts the number of days available now at 20 - 25 days a month for permanent workers in a workshop, and 18 - 20 days for those less experienced. Mr Chan says that he only employs carpenters now for 10 - 15 days a month. The figures vary therefore between 10 days and 25 days. Mr Chan, of course, will be mainly familiar with his own business, whereas the Plaintiff must still have contacts among workers like himself who are employed elsewhere. I am therefore more inclined to accept a figure nearer the Plaintiff's here, and put the likely number of days now worked each month at 20. There was no clear evidence of when this situation started, that is when the number of days changed from 26 to 20, so for the purposes of this case I will take a median of the monthly earnings. If the Plaintiff were working now he would be earning $15,400.00 a month, being $770.00 X 20. The median is accordingly $16,540.00 ($17,680.00 + $15,400.00 ÷ 2). He is accordingly entitled to a total of $425,905.00 ($16,540.00 X 25.75 months) for the period of total loss of earnings during his sick leave.

30. The Plaintiff has been working in a clothes shop since March this year, with a break after 28 days until June, and is earning between $4,600.00 and $4,700.00. This is a job which requires him to stand for long periods, which again seems to present no problem provided he can sit occasionally. He says that he has sought other employment since his sick leave ended on 26 June 1998, but this appears to have been to the extent of registering with the Labour Department rather than actively pursuing opportunities by answering advertisements and using personal contacts. In respect of the latter it is interesting that he has not sought any employment in the interior decorating or carpentry field. It is clear that he is able to do such work, albeit avoiding very heavy work and lifting, but after 20 years in the trade in Hong Kong, I would be very surprised if he did not have connections in that field who would be able to assist in finding the sort of employment suitable to his situation. It was suggested by the Defendant's counsel that he could work as a sub-contractor employing others. While it is a sensible suggestion, I cannot criticize the Plaintiff for not wishing to take up the necessary responsibility, the paperwork and organisation, and the need to have the capital for equipment and materials.

31. In my view, the Plaintiff could, and should, have actively and more aggressively sought employment suitable for him at least when his sick leave expired. Both Dr Mao and Ms Tsang put the Plaintiff's loss of earning capacity at 10% which in my view is a realistic assessment of the loss he suffers in the labour market. Following his sick leave, therefore, he should have been able to earn $14,886.00 a month being a loss of $1,654.00 a month from the median. For the period of 17 months from 26 June 1998 his loss is $28,118.00, not allowing for his earnings this year. I make no further deduction for these as he has earned considerably less than the sum I have found he ought to be able to earn. He is accordingly entitled to a total loss pre-trial of $454,023.00.

Post-trial loss of earnings

32. The Plaintiff is now aged 47. While his trade as carpenter cannot equate with a heavy manual labourer in so far as his expected working life is concerned, it is not an occupation which he would be able to pursue into old age. In the circumstances I consider an appropriate multiplier is 8. As I have found above, he would, if he had continued working, now be earning $15,400.00 a month, and I assess his loss at 10% of that, namely $1,540.00 a month.

33. The award for future loss of earnings will accordingly be $147,840.00 ($1,540.00 X 12 X 8).

Special damages

34. These were agreed at $35,136.00.

SUMMARY

Pain suffering and loss of amenities	$300,000.00
Pre-trial loss of earnings	$454,023.00
Future loss of earnings	$147,840.00
Special damages	$35,136.00
	$936,999.00
	=========

35. The Plaintiff must give credit for the sum received by way of Employees' Compensation being $387,586.63 making a total award of damages to the Plaintiff of $549,412.37.

36. There will be interest on the award for pain suffering and loss of amenities at the rate of 2% per annum from the date of writ, and on the award for special damages and pre-trial loss of earnings at the rate of 5.75% per annum from the date of the accident, both to the date hereof.

37. There will also be an order nisi that the Defendant shall pay the Plaintiff's costs of these proceedings to be taxed.