NG WAN KONG v. KWAN SIU KEUNG AND ANOTHER

Re: H.C. Action No. A3036 of 1986

Schedule of cases cited

1. Chan Suet Keung v. Yip Shui For, H.C.A. No. 9188 of 1982 Master Betts, 1st November, 1983.

2. Chan Po Keung v. Law Ping, H.C.A. No. 3993 of 1983, Master Hansen, 23rd December, 1983.

3. To Kin Shan & Anor v. Chan Hok Leung & Anor., H.C.A. No. 4123 of 1982, Master Clay, 23rd March, 1984.

4. Mak Kwok Hing v. Shum Kwai Fai, H.C.A. No. 3159 of 1985, Liu J., 18th November, 1986.

5. Yeung Kai Ming v. Wah Kee Meta1, H.C.A. No. A6904 of 1985, Master Jones, 15th January, 1987.

6. Tam Siu Keung v. Sum Chee Hon, H.C.A. No. 8165 of 1984, Master O'Donnell, 28th July, 1987.

7. Tran Van mho v. Cheuk's Industries Co. Ltd., H.C.A. 1Jo. A719 of 1986, Mtaster O'Donnell, 30th September, 1987.

8. Chan Hung Hoi v. Polypropylene Alliance Ltd., H.C.A. No. A2709 of 1986, Deputy Judge Daniell, 9th March, 1988.

9. Leung Chor Hung v. Wong Cheung Yuen, B.C.A. No. A3205 of 1987, Master O'Donnell, 20thApril 1988.

10. Wong Man Ngai v. Multi-Best Mfg. Ltd., H.C.A. No. 3723 of 1984, Master O'Donnell, 22nd April, 1988.

1986 No. 3036

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. At about 3.45 pm on 20th October 1983 the Plaintiff, who was then 37 years of age and right-handed, suffered an injury to his right thumb during the course of his employment as a power press operator with the Defendants at their premises in Kwai Chung. For this injury the Plaintiff claims damages for breach of statutory duty, breach of contract and negligence. Liability is denied but the Defence, settled by Counsel, makes no plea of contributory negligence. At the trial both Defendants appeared in person.

2. The Plaintiff came to Hong Kong from China in 1974 and from about 1975 he worked as a power press operator. He had been employed by the Defendants for several months prior to the accident.

The Process

3. The Plaintiff's job was to place a circular metal piece of a watch case into the power press for pressing. He did this with his right hand, being right-handed, and when the metal piece was in place, he pressed a foot pedal which operated the press. After pressing the press would automatically open ready to receive the next piece of metal. The Plaintiff told me that during an eight-hour period he would press approximately 20,000 pieces. This works out to something like 40 every minute.

The Sweep-Away Guard

4. Photographs of the machine in question (or an identical machine) were taken by the Defendants and were placed before me and marked Exhibit "D1". These photographs show that the machine was fitted with a sweep-away guard. However the Plaintfiff told me that after the accident the machines were fitted with new arms to the sweep-away guard. These new arms were at a slightly different angle to the old arms. However the Plaintiff further told me, and I accept, that the machine upon which he was working on 20 October 1983 had only one arm, namely the right arm as you look at the machine (see photographs 7 - 9). The Plaintiff further told that the old arms had a very limited sweeping movement whereas the newly fitted arms had a much more extensive sideways sweep.

Conviction

5. On 23 May 1984 the Defendant Mr Kwan, one of the partners in Tai Hing Metalware Manufactory pleaded guilty to an offence under the Factories and Industrial Undertakings (Guarding and Operation of Mackinery) Regulations made under Chapter 59 of the Laws of Hong Kong. He was fined HK$1,000.

The Ordinance and Regulations

6. The Defendants' factory premises at 17 - 31 Kwai Fung Crescent, 8/F Flat 6, Marvel Industrial Building, Kwai Chung was clearly a registrable workplace within the meaning of Section 2(1) of the Factories acid Industrial Undertakings Ordinance Cap 59.

7. I am satisfied that the power press on which the Plaintiff was injured was required by Regulation 5 of the Factories and Industrial Undertakings (Guarding and Operation Regulations of Machinery) Regulations Cap 59 to be effectively guarded by one of the means therein set out and that it was not so guarded at the time of the accident.

Factory Inspectorate

8. Mr Tsoi from the Labour Departmept prepared a report solely on the basis of an interview with the Plaintiff. His report is page 21 of the Plaintiff's Bundle which by consent, is now Exhibit p7. He confirmed that the conviction of Mr Kwan was in respect of the machine used by the Plaintiff on that very occasion. He agreed that a machine malfunction was a very remote possibility. He explained the purpose of the sweeping-guard and confirmed that it was so designed (as can be seen from the photographs) that a hand could not easily go between the arms.

Defendants' Version

9. Neither Defendant elected to give evidence. Mr. Kwan said that he was in general agreement with the evidence given. He specifically agreed that at the time of the accident there was no left-arm guard.

Conclusion on Liability

10. I have no hesitation in finding that the Defendants were in breach of their statutory duty not guarding a dangerous part of a machine by any of the means mentioned in Regulation 5. I am satisfied that on the occasion of the accident there was only a right arm sweep. Photograph 10 shows how, after the accident, the new arms almost meet in the middle thus making it impossible for an operator to start the process with his hand in between the arm. Photograph 10 shows that to insert the metal piece for pressing, the operator has to approach the press from the outside of the right arm, thus putting his arm in the path of the sweep. If he does not move his hand out in time the sweep will do it for him.

11. However with only one arm there is nothing to stop the operator placing his hand to the left of the arm sweep thus avoiding the effect of the sweep altogether.

12. I am further satisfied on the evidence I have heard that the sweep of the old arm was insufficient to achieve its purpose. No doubt that is why it was replaced after the accidents.

13. The Defendant, Mr Kwan, pleaded guilty to an offence under the above regulations, and no sufficient evidence has been produced before me to rebut the prima facie effect of that conviction.

14. The Plaintiff could not explain how it was his thumb became trapped in the press. The most likely reason was that he was working at great speed because he had to try and do 40 presses a minute in order to achieve the higher wage. His basic rate was $60 for a 9 hour day, 26 days a month. That comes to $1,560. However the Plaintiff told me that he never earned less than $2,200. This was not challenged. In addition to his basic rate he was paid an unspecified number of dollars per hundred pieces. I say unspecified because the Plaintiff was unable to recall but he did remember that he never earned less than $2,200. The number of pieces he did was recorded and he was paid twice a month. So it follows that the Plaintiff was working at speed in order to earn as much as he could. I think what happened was that, having placed a piece of metal in the press he pressed the foot pedal too soon. This brought into operation the one remaining arm of the sweep and after that the press closed. It was unfortunate that the Plaintiff pressed the pedal too quickly but this is precisely what the sweeping-guard is designed to deal with. Had there been two arms he would have had to place the metal into the machine with his right arm to the right of the guard. When he accidentally pressed the pedal too soon, the sweep, assuming an adequate range, would have swept his arm out of the way thus preventing the accident. With only one arm to this machine it as possible that he put his arm to the left of the right arm sweep thus avoiding its operation completely. Alternatively he could have put his hand to the right of it but the inadequate sweep was not enough to sweep away his arm. For the purposes of liability I do not think it matters which way the accident occurred. In my view either eventuality leads to a liability on the part of the Defendant. On balance however I think it more likely that the Plaintiff placed his arm to the left of the right-arm sweep thus avoiding its operation completely. Had the left are been in place he would not have been able to do this, at least not, with any ease, and his arm would have been to the right of the sweep and thus in its path. If the Plaintiff put his hand to the left of the sweep then it really would not have mattered whether the sweep was adequate or not. It would simply not have come into contact with his hand or arm. However the whole purpose of this guard is to ensure that the operator's arm is in the path of the sweep and this was prevented in this case due to the absence of the left sweep-arm.

15. I therefore conclude on the question of liability that the Defendants are liable to the plaintiff for damages for breach of the above statutory duty and the breach was causative of the Plaintiff's injury. I further conclude that the Defendahtsbare are liible to the Plaintiff in contract and tort for not supplying him with a safe system of work including the provision of safe equipment as pleaded in the Statement of Claim.

The Injury

16. Three agreed medical reports were placed before me.

17. They were:

(1) Dr Chang of Princess Margaret Hospital dated 18 May 1985

(2) Dr R G Wedderburn dated 23 September 1985;

(3) Dr Philip Mao dated 22 March 1988.

18. From these agreed reports it is apparent that the Plaintiff sustained a crush injury to his right thumb. A revision amputation was carried out on that date. Post operatively he was followed up in Out Patient Clinic and given physiotherapy and occupational therapy. Because he complained of persistent pain at the stump he was readmitted to Princess Margaret Hospital on 22 March 1984 for exploration which showed an entrapment of a digital nerve which was released. Some improvement was shown after the second operation. In Dr Wedderburn's report he sets out that the Plaintiff had 50 sessions of physiotherapy after his stitches had been removed. Following the March 1984 operation he experienced an improvement but continued to have discomfort in the stump of the thumb. On the second occasion he was in hospital for three days.

19. For the second operation he had a form of intraveinous injection as an anaesthetic. The injection was made into vein near the elbow. Since then he has complained of pain at the back of the shoulder and he blames this on the anaesthetic. When Dr Wedderburn saw him in September 1985 he saw a very good soft tissue over the stump of the thumb. There is good skin and fatty tissue over the bone end. X-Rays shows that the terminal phalanx of the thumb was amputated. Dr Wedderburn found good movement of the remaining stump. There was no injury to the fingers.

20. I saw the Plaintiff's thumb on his right hand and agree with Dr Wedderburn's conclusion that there is good skin and fatty tissue over the bone end and indeed the thumb, shortened and without nail, as it is, is not cosmetically too disturbing.

21. The Plaintiff also complained of pressure over the scapula. Dr Wedderburn thought that he had damaged the attachment of the muscles of the scapula although he felt it was unlikely that it was a direct result of the accident because it had not developed for five months. There is some limitation of arm movement at the shoulder, but only the extremes of movement. Dr Wedderburn thought that a single injection of cortisone into the painful area would clear the matter up.

22. Dr Mao's report in March 1988 states that the Plaintiff's right hand has a grip of 20 1bs as compared to 110 1bs in the left. The Plaintiff told Dr Mao that he uses his left hand to do most heavy work but can still write with his right hand and use chopsticks. The Plaintiff still has tenderness in the right scapula below the middle of the spine and seems to be affected by an inability to raise his arm above his head. Dr Mao suggests some further physiotherapy and exercise to regain this strength.

23. The Plaintiff told me that his right hand his useless and that he cannot work with it. This seems to be a slight exaggeration. He says he suffers pain in the thumb on weather changes but otherwise there was not much pain. It was painful if he knocked it. He complained that he could not button his clothing with his right hand or fasten knots or pick up small articles. However, there was no reason why he could not do these adequately with his left hand. He accepted that he could write and could use chopsticks. He had difficulty with holding bowls of food and inserting film into his camera. So far as pain in the right shoulder was concerned, he said it commenced after his anaesthetic injection and he had no pain prior to it. As to the shoulder pain I cannot go behind the contents of the Agreed Medical Report of Dr Wedderburn who cannot relate this to the accident. Mr Bharwaney did not contend to the contrary. The Plaintiff was given sick leave certificates until August 1984.

24. I was referred by Mr Bharwaney to ten cases the names of which I attach to an Appendix to this Judgment. On the strength of these cases taking into account inflation and the observations of the Court of Appeal in Lau Che Ping 1988 Civil Appeal 12, Mr Bharwaney contended for an award for pain and suffering and loss of amenity in the sum of $100,000. In my view this was a bold submission.

25. In two of the more recent cases referred to the awards were much lower for similar injuries. In Tran Van Nho -v Cheuks Industries 1986 A719 Master O'Donnell awarded $35,000 to a 31 year-old man who suffered an amputation of the tip of his right thumb. In Chan Hung Hoi 1986 A2709 a 21 year-old male was awarded $40,000 in March 1988 by Deputy Judge Danniell for a one and a half centimetre shortening of his right index finger. Mr Bharwaney reminded me of the differences in these cases and contended they were on the low side. He relied heavily on an award by Master Hansen in December 1983 in Chan Po Keung against Law Ping H.C.A. 3993 of 1983 where for a similar injury to an ambidextrous 20 year-old male an award of $36,000 was made. The Plaintiff in that cases was 17 at the time of the accident. In my view his youth was a significant factor. This award seemed a little high or 1983. Mr Bharwaney says that if one takes into account inflation that award would now be at least $70,000. Allowing for the differences in these cases and taking into account inflation and the observations in Lau Che Ping 1988 Civil Appeal No 12 I consider the appropriate sum for pain and suffering and loss of amenity to be $60,000.

Loss of Earnings

26. After his sick leave certificates expired in August 1984 the Plaintiff told me, and I accept, that he tried to find other jobs. He tried at Hong Kong University for and odd-job position but was unsuccessful. He went to the Vocational Training Centre in Wanchai but was not accepted. He applied to the Fire Services Department but was rejected. He further told me and I accept that he went to tan factories to look for jobs before be finally got one. He told me that as soon as the employers saw his hand they said they bad enough workers. In relation to the earlier applications this was done by writing and he referred to being physically handicapped on the application form. He thought that this affected his application. The Plaintiff registered with the Selective Placement Department of the Labout Department in about June 1985 as can be seem from Ekhibit "P6".

27. Eventually the Plaintiff managed to find a job with Foo Kai Plastic Company. He was not very precise on dates but by a process of elimination his evidence came to this. He worked for Foo Kai for the sum of $90 day and was paid twice per month. The wage period was therefore every two weeks and he stayed with them for four to five wage periods. This means that he worked for Foo Kai for between eight and ten weeks. In the absence of any more precise evidence and on the longer figure agreed to by Mr Bharwaney I am prepared to hold that the Plaintiff worked for Foo Kai or 65 working days at $90 per day. Originally the Plaintiff was unsure in which year he worked for Foo Kai although he said that it was the summer. However by working back from his present employment he was later able to say that the 65 days were in the summer of 1986. On the evidence I have heard as I have said I have found the Plaintiff worked for Foo Kai for 65 working days at $90 a day. In his particulars of served on the 25 January 1989 the Plaintiff states that he worked for 37 working days for Foo Kai. However, on the evidence as I have found it to be and as submitted by Bharwaney he worked with them for 65 days at $90 a day.

28. I accept the Plaintiff's evidence that he was thereafter without employment until towards the end of 1986. Again he was not too clear when he started working for his present employers Gar Yun Garment Factory but I think the totality of his evidence is that he started with them from the beginning of November 1986 and has remained with them until the present time. His particulars of claim state that he was earning $1,600 a month with them but the evidence which was produced before me from his payslips and his autopsy credits in his sayings book show a monthly average for $2,650.

29. I am satisfied on the evidence I have heard that at the time of the accident the Plaintiff was earning approximately $2,200 per month Page 12 of the Agreed Bundle shows that the average daily wages of power press operators engaged in metal products industry in December 1983 was $58 per day which together with fringe benefits came to $71 per day. This was for an eight-hour day, 26 days per month. By September 1987 the average daily basic wage had gone up to $90 and with fringe benefits had gone up to $114. Page 17 of the Agreed Bundle shows that by March 1986 the average basic wage had gone up to $108 per hour, and with fringe benefits had gone up to $135 per hour, namely $3,510 per month. By consent Counsel for the Plaintiff told me that by June 1988 the figures were $118 and $141 respectively but by September 1988 they had reduced to $114 and $139 respectively. At $139 a day that comes to $3,614 per month. This has been rounded down to $3,610. The median between, $2,200 and $3,610 is $2,905. The Plaintiff claims total loss of earnings from the date of the accident, 20 October 1983 to 19 May 1986. I am prepared to allow this period being two years and seven months. This is 31 months at $2,905 per month a total of $90,055.

30. The second period as I find is one of partial loss of earnings for 65 days. The Plaintiff worked as a casual labourer with Foo Kai earning $90 a day or $2,340 per month. Taking the median of $2,905 this comes to $111.50 per day, less the $90 actually earned leaves a loss of $27.5 for 65 days, namely a loss of $1,397.

31. The next claim is one of total loss of earnings at the median of $2,905 per month. However as I found the Plaintiff had worked for Foo Kai for 65 days I think it only appropriate to take this total loss to be three months as opposed to the 4 months originally claimed, making a total of $8,715 [2905 x 3].

32. The final period of partial loss of earnings is from November 1986 when he started with Gar Yun Garment Factory until the present time namely twenty seven months. I am satisfied on the evidence that his average wages with Gar Yun is $2,650 per month. The difference between that figure and the median of 2905 is $255. The loss is therefore $255 per month for 27 months namely $6,885.

Future loss of earnings

33. The Plaintiff is now aged 42 years of age. Mr Bharwaney for the Plaintiff contended for a multiplyer of 12. I think the appropriate multiplyer is 11. The current earnings of press operators are $3,610 per month. The Plaintiff is now earning $2,650. That is a shortfall of $960 per month. 11years x 12 equals 132 x $960 equals $126.720.

Costs of Out-Patient Treatment

34. The Plaintiff has produced 23 sick leave certificates. For each of these he had to travel to the hospital. The hospital registration fee was $10. This would produce a claim for $230. However Dr Wedderburn in the agreed medical report states that the Plaintiff had 50 sessions of physiotherapy in the Hand Unit. The Plaintiff had to pay $10 registration fee for each visit and this comes to $500. The figure pleaded in the Plaintiff's schedule is $760 but this should be $730. I therefore award $730 under this head.

Travelling Expenses

35. The Plaintiff told me that the round trip cost $3 and for 73 visits I therefore award $219.

Nourishing Foods

36. The only evidence I have on this is from the Plaintiff who said he spent between $700 - $800 on vitamins on advice from Doctor. The pleaded figure is $2,500 but this has not been made out on the evidence. I award therefore under this head the sum of $700.

Future Labour Market Risk

37. It is submitted that I should award damages in the sum of $50,000 under this head on the basis that if the Plaintiff should lose his job, for instance because of the liquidation of his employer, he will take longer than an able-bodied man to find alternative employment because of his injury. It is clear that before an award can be made under this head there has to be evidence to support it. The Court of Appeal in Lau Che Ping make it clear that it is not appropriate to award merely a conventional figure under this head. They also made it clear that there has to be evidence to support an award under this head. I have set out above the Plaintiff's attempts at finding a job and the various rejections he experienced. Although Hong Kong enjoys full employment at the moment, it does not follow this will continue during the whole of the next eleven years. It took the Plaintiff over a year and a half to find his first job. There was then a period of three months during which he was unable to get a job. He has been with his present employers for two and a quarter years. I am satisfied on the evidence that I have heard that there is a real risk that during the next eleven years the Plaintiff as a labourer will have problems in finding alternative employment.

38. As he is to be compensated now for a loss which has not yet occurred I consider the appropriate figure under this head is $20,000.

Employees Compensation

39. Although page 7 of the Agreed Bundle shops that the Plaintiff agreed to accept $43,108 in respect of Employees Compensation I am told and of course accept that in fact the Plaintiff received $44,621.48. He must of course give credit to that sum.

Conclusion

Interest

40. I therefore give Judgment against the Defendants and each of them in the sum of $290,871.

41. I order the Defendants to pay the Plaintiff's costs to be taxed if not agreed and that there be a Legal Aid taxation of the Plaintiff's costs.